19 S.W. 58 (Mo. 1892), Miller v. Missouri Pac. Ry. Co.

Citation:19 S.W. 58, 109 Mo. 350
Opinion Judge:Black, J.
Party Name:Miller v. The Missouri Pacific Railway Company, Appellant
Attorney:H. S. Priest and H. G. Herbel for appellant. S. P. Sparks for respondent.
Case Date:March 04, 1892
Court:Supreme Court of Missouri

Page 58

19 S.W. 58 (Mo. 1892)

109 Mo. 350

Miller

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

March 4, 1892

Appeal from Johnson Circuit Court. -- Hon. C. W. Sloan, Judge.

Reversed and remanded.

H. S. Priest and H. G. Herbel for appellant.

(1) The demurrer to the evidence should have been sustained. The engineer, fireman and conductor of the work train were fellow-servants with Miller, and, if it be true that he was injured through the negligence of any one of these, it was the negligence of a fellowservant, for which the defendant is not liable. Higgins v. Railroad, 104 Mo. 413; Schaub v. Railroad, 16 S.W. 924; Corbet v. Railroad, 26 Mo.App. 621; Murray v. Railroad, 98 Mo. 573; Sherrin v. Railroad, 103 Mo. 378; Harrison v. Railroad, 41 Am. & Eng. R. R. Cases, 403; 79 Mich. 409; Ely v. Railroad, 48 N.W. 222; Elliott v. Railroad, 38 Am. & Eng. R. R. Cases, 62. Even if the doctrine now prevailed, that persons in a master's employ engaged in different departments of labor are not fellow-servants, yet that doctrine would not be applicable to the facts of this case. Here the train crew and the section men were all engaged in doing the same thing, viz., repairing the track. The train crew hauled the gravel where it was needed, the section men unloaded it and put it in the track. It was a work train, and all of its crew and the section men were engaged in the same labor, were working in the same department, and in close connection with each other, and, in the fullest sense, were fellow-servants. Randall v. Railroad, 119 U.S. 478; Ely v. Railroad, 48 N.W. 222; Higgins v. Railroad, supra. Hence, Sullivan v. Railroad, 97 Mo. 113, even if still authority in this state, is not in point. For the same reason, it was error to refuse defendant's tenth instruction, and give the plaintiff's first instruction. (2) It was error to give plaintiff's second instruction. By this instruction the jury were directed to assess the plaintiff's damages at $ 5,000, if they found in her favor. This was wrong, even if the engineer and plaintiff's husband had not been fellow-servants. As they were fellow-servants, it is clearly wrong. Proctor v. Railroad, 64 Mo. 112, 126, overruling Schultz v. Railroad, 36 Mo. 18: Rohback v. Railroad, 43 Mo. 187; Elliott v. Railroad, 67 Mo. 272; Holmes v. Railroad, 69 Mo. 53; Flynn v. Railroad, 78 Mo. 195; Schlereth v. Railroad, 96 Mo. 509; Schaub v. Railroad, 16 S.W. 924; Parsons v. Railroad, 94 Mo. 286. The case of Sullivan v. Railroad is not in point here, as that case only holds that where an employe is injured by another employe, who is not a fellow-servant of the injured party, such employe can recover under section 4425, Revised Statutes, 1889, and that the measure of damages is $ 5,000. But the Sullivan case, we respectfully submit, is not the law, even under the facts of that case. It is opposed to the repeated holdings of this court in the cases last above cited, and is also in direct conflict with the last decision of this court upon the point. Schaub v. Railroad, 16 S.W. 924.

S. P. Sparks for respondent.

(1) Stubblefield, the conductor in charge of the construction train, was as to deceased a vice-principal. Brothers v. Cartter, 52 Mo. 373; Moore v. Railroad, 85 Mo. 588; Hoke v. Railroad, 88 Mo. 360; Tabler v. Railroad, 93 Mo. 79; Whalen v. Church, 62 Mo. 326. Fitzgerald, the foreman of the defendant's section gang was likewise a vice-principal. Authorities, supra. (2) The act of Stubblefield in causing the engineer to start the train without notice to deceased was gross negligence, and the proximate cause of Miller's death. Shearman & Redfield on Negligence [Ed. 1869] secs. 10, 33. (3) If the negligent act of Stubblefield had a share in producing the injury, the company was liable, even though a fellow-servant, the engineer, contributed thereto by a failure to discharge his duties properly. Railroad v. Cumings, 106 U.S. 700; Booth v. Railroad, 73 N.Y. 38; Paulmier v. Railroad, 5 Vroom (N. J.) 151; Steller v. Railroad, 46 Wis. 497; Elmer v. Locke, 135 Mass. 575; Faron v. Sellers, 39 La. Ann. 1011; Moore v. Wabash, 85 Mo. 586; Hoke v. Railroad, 88 Mo. 360. (4) At common law the master assumes the duty towards the servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work, and when the service required of the employe is of a particularly dangerous character the master owes him a duty of active viligance, and he has a right to become engrossed in his labor to the extent of being oblivious to the approach of trains, relying as they may upon the duty imposed by law with reference to them. Railroad v. Fox, 31 Kan. 586; S. C., 3 P. 586; Gessley v. Railroad, 32 Mo.App. 413; Railroad v. Goebel, 119 Ill. 515; S. C., 10 N.E. 369; Erickson v. Railroad, 41 Minn. 500; S. C., 43 N.W. 332; Moore v. Railroad, 85 Mo. 588; Goodfellow v. Railroad, 106 Mass. 461; Whalen v. Church, 62 Mo. 326; Anderson v. Bennett,...

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