Schlereth v. The Missouri Pacific Railway Company
Decision Date | 20 March 1893 |
Parties | Schlereth v. The Missouri Pacific Railway Company, Appellant |
Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Affirmed.
H. S Priest and H. G. Herbel for appellant.
(1) The court erred in admitting incompetent and illegal evidence offered by plaintiff against defendant's objections. Stephens v. Railroad, 96 Mo. 214; Beems v Railroad, 58 Iowa 150; s. c., 6 American & English Railroad Cases, 227; Railroad v. Gower, 85 Tenn. 465; s. c., 31 American & English Railroad Cases, 168; Railroad v. Reeves, 11 S.W. 465; Railroad v. Roy, 102 U.S. 459; Gourley v. Railroad, 35 Mo.App. 87; Igo v. Railroad, 38 Mo.App. 377. (2) The court erred in overruling defendant's demurrers to the evidence. Harlan v. Railroad, 65 Mo. 25; s. c., 64 Mo. 480; s. c., 66 Mo. 26; Lennox v. Harrison, 88 Mo. 496; Breckenridge v. Ins. Co., 87 Mo. 77; Fitzgerald v. Barker, 85 Mo. 22; Railroad v. York, 12 S.W. 70; Kennedy v. Railroad, 43 Mo.App. 3; Bell v. Railroad, 86 Mo. 612; Fath v. Railroad, 16 S.W. 915; Robertson v. Railroad, 84 Mo. 121; Reagan v. Railroad, 93 Mo. 352; Barker v. Railroad, 98 Mo. 53; Couley v. Railroad, 38 Minn. 81; Taylor v. Railroad, 86 Mo. 462; Lenix v. Railroad, 76 Mo. 91; Loeffler v. Railroad, 96 Mo. 267; Higgins v. Railroad, 16 S.W. 409; Schaub v. Railroad, 16 S.W. 924; Corbett v. Railroad, 26 Mo.App. 628; Murray v. Railroad, 12 S.W. 252; Elliot v. Railroad, 38 American & English Railroad Cases, 62; Railroad v. Wachter, 60 Md. 395; s. c., 15 American & English Railroad Cases, 191. (3) The court erred in refusing to give the instructions asked by defendant. Railroad v. Wachter, 60 Md. 395; Williams v. Railroad, 96 Mo. 280. (4) The court erred in giving the instructions it did at plaintiff's instance. Dahlstrom v. Railroad, 96 Mo. 102; Bell v. Railroad, 72 Mo. 50; Stillson v. Railroad, 67 Mo. 671; Fath v. Railroad, 16 S.W. 915; Robertson v. Railroad, 84 Mo. 121; Thomas v. Babb, 45 Mo. 384; Duke v. Railroad, 99 Mo. 351; Gessley v. Railroad, 26 Mo.App. 161; Railroad v. State, 41 Md. 272. (5) The instructions given by the court of its own motion were erroneous. Railroad v. Ryder, 62 Tex. 270; Wilmott v. Railroad, 16 S.W. 502; Zimmerman v. Railroad, 76 Mo. 490; Devitt v. Railroad, 50 Mo. 305; Ravenscraft v. Railroad, 27 Mo.App. 623; Barr v. K. C., 16 S.W. 485; Stoher v. Railroad, 91 Mo. 518. (6) The court erred in not rebuking plaintiff's counsel for making the remarks objected to by defendant in his address to the jury. (7) The verdict was excessive, and the court erred in not sustaining defendant's motion for new trial.
E. P. Johnson for respondent.
(1) The running of the engine had no connection with the work of the section men in this case, and Schlereth was not a fellow-servant with the trainmen runnning the engine. Dayharsh v. Railroad, 103 Mo. 570; Sullivan v. Railroad, 97 Mo. 113; Schlereth v. Railroad, 96 Mo. 509; Tabler v. Railroad, 93 Mo. 79; Smith v. Railroad, 92 Mo. 359; Moore v. Railroad, 85 Mo. 588; Hall v. Railroad, 74 Mo. 301; Lewis v. Railroad, 59 Mo. 495. (2) Schlereth, although on his way to work, was not on duty in the sense of that term that would have deprived him of a right of action for an injury caused by the negligence of a fellow-servant. Baird v. Pettet, 70 Pa. St. 481; Railroad v. Trainor, 33 Md. 554; State v. Railroad, 63 Md. 433; O'Donnell v. Railroad, 59 Pa. St. 245; Russell v. Railroad, 5 Duer, 41; Washburn v. Railroad, 3 Head, 638; Hutchinson v. Railroad, 6 Am. & Eng. Railroad Cases, 588; Carroll v. Railroad, 88 Mo. 245. (3) The engineer of the engine that struck deceased had the entire control of it at that time, and therefore directly represented the appellant, as much so as if he had been its president; and he was running said engine on the time of a regular train. These facts being undisputed, the question of fellow-servant, as between said engineer and deceased, does not properly arise in this case. Miller v. Railroad, 19 S.W. 58; Bluedorn v. Railroad, 18 S.W. 1103; Dixon v. Railroad, 19 S.W. 412. (4) When this case was here before it was reversed and remanded. One of the points then insisted on was, that the deceased and said engineer were fellow-servants. The opinion reversing the case makes no mention of this point; but it was necessarily decided in favor of respondent, or the case would not have been remanded. Nutter v. Huston, 42 Mo.App. 363; Hayden v. Grillo, Id. 1, and the question is now res adjudicata and should not be disturbed; Bank v. Taylor, 62 Mo. 338; Belch v. Miller, 37 Mo.App. 628. (5) The presumption of law is, that Schlereth was exercising ordinary care at the time of his injury, and was not guilty of contributory negligence (but appellant under the instructions had the full benefit of such a plea). Parsons v. Railroad, 94 Mo. 286; Petty v. Railroad, 88 Mo. 320; Schum v. Railroad, 77 Pa. St. 8; Swigert v. Railroad, 75 Mo. 480; Buesching v. Gas Co., 73 Mo. 233; Flynn v. Railroad, 78 Mo. 195 (6) The petition was sufficient to authorize a recovery on the ground that the servants of respondent might, by the exercise of ordinary care, have seen the deceased in peril in time to have avoided injuring him. Hilz v. Railroad, 101 Mo. 36; Kellney v. Railroad, 101 Mo. 67; Neir v. Railroad, 12 Mo.App. 35; Carroll v. Railroad, 88 Mo. 241; Carlisle v. Packet Co., 82 Mo. 42; Mack v. Railroad, 77 Mo. 234; Ellet v. Railroad, 76 Mo. 535. (7) The court should also have instructed the jury to render a verdict in the sum of $ 5,000, under the first clause of section 2121, Revised Statutes, 1879; Becke v. Railroad, 102 Mo. 544; King v. Railroad, 98 Mo. 235; Crumpley v. Railroad, 98 Mo. 34; Sullivan v. Railroad, 97 Mo. 113.
OPINION
In Banc.
This is the second appeal by defendant in this case. The opinion of the court on the first appeal will be found reported in 96 Mo. 509, 10 S.W. 66, including a full and fair statement of all the facts of the case as they existed at that time.
After the case was reversed and remanded defendant filed an amended answer alleging contributory negligence and with that exception the case was tried on the pleadings as they were at the time of the first trial. The evidence tended to establish the theory of the plaintiff and also contributory negligence on the part of deceased.
At the close of the case defendant prayed the court to instruct the jury as follows:
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