Miller v. Missouri Pac. Ry. Co.
| Decision Date | 04 March 1892 |
| Parties | Miller v. The Missouri Pacific Railway Company, Appellant |
| Court | Missouri Supreme Court |
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, 19 P. 763. (5) The deceased was killed by the negligence of defendant "whilst running, conducting and managing its locomotive and cars." The measure of damages was fixed by the statute, and the court committed no error in fixing the measure of damages at $ 5,000. Sullivan v. Railroad, 97 Mo. 113; LeMay v. Railroad, 105 Mo. 371.
The plaintiff, the widow of Joshua Miller, brought this suit to recover damages for the death of her husband who was killed while at work for the defendant on its road at a point between Warrensburg and Montserrat.
The deceased was one of a gang of thirty men, all under the direction and control of Fitzgerald who was their foreman. Fitzgerald and his gang of men were at work raising and ballasting the main track. A gravel train composed of some thirty loaded cars arrived at the place where the men were at work in the afternoon, and it became their duty to unload the same. This was accomplished by the use of a plow. A wire cable, the length of fifteen or sixteen cars, was attached to the plow placed on the rear car. The train was then cut in two, and the other end of the cable made fast to the rear car of the section next the engine. The engine then moved forward drawing the plow over the stationary cars. This done, the engine alone was used to draw the plow over the first section.
The plow removed the bulk of the gravel only and threw some of it between the cars, so that it became the duty of the deceased and the men of his gang to shovel the remaining gravel off the cars, and to remove that which fell between them. On the occasion in question the plow had been drawn over the rear section composed of some fifteen cars, and the deceased and others were on these cars shoveling off the remaining gravel. The first or unloaded section was then backed up and coupled to the second or rear section. It then became the duty of the conductor to take his entire train of cars to the Montserrat siding so as to clear the main track for other trains having the right of way. The conductor gave his engineer a signal to move forward. It seems the deceased was in the act of jumping or stepping from one car to the other just as they began to move, so that the jar threw him down between the wheels.
The evidence for the plaintiff tends to show that the deceased was absorbed in the performance of his work, and that the train was moved without ringing the bell or giving the deceased and those at work on the cars any warning whatever. On the other hand the conductor of the train says he told Fitzgerald what his orders were, namely, to take the train to Montserrat; that he notified him to move his men from the cars; that the men were notified to get off before the engine was coupled on; that he asked two or three of the men if the track was clear, and they said it was; that after the men had been notified to get off he gave the engineer the signal to move ahead. The defendant produced other evidence to the effect that the bell was rung a few seconds before the train started.
The plaintiff's first instruction is as follows: "If you find that at the time the train was set in motion by defendant the deceased's attention was occupied by his work, and that no notice or warning was given him of the moving of the train prior thereto, or at the time of such moving, or that if any such notice or warning was given him it was not of such a character as to put a man of ordinary prudence and care, possessed of ordinary acute senses of hearing and seeing, in the circumstances in which deceased was placed, on his guard, and that deceased did not know that the train was about to be moved, and that the setting of said train in motion by defendant was the direct cause of the injury to deceased, and that his death was the result of such injuries then your verdict should be for the plaintiff."
1. The defendant seeks to be relieved from liability in this case on the ground that Miller lost his life by the negligence of a fellow-servant, thus invoking the rule that the defendant is not liable to one servant for the negligence of a fellow-servant. The case made by the evidence stands on other and different grounds as we view it. Where the master gives to a person power to superintend, control and direct the men engaged in the performance of work, such person is as to the men under him a vice-principal, and it can make no difference whether he is called a superintendent conductor, boss or foreman. For his negligent acts and omissions in performing the duties of the master, the master is liable. This principle of law has been often asserted by this court and applied under a variety of circumstances, as will be seen from the following cases: Brothers v. Cartter, 52 Mo. 372; Gormly v. Iron Works, 61 Mo. 492; Whalen v. Church, 62 Mo....
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