22 S.W. 1081 (Mo. 1893), York v. The Kansas City, Clinton & Springfield Railway Company

Citation:22 S.W. 1081, 117 Mo. 405
Opinion Judge:Macfarlane, J.
Party Name:York et al., Plaintiffs in Error, v. The Kansas City, Clinton & Springfield Railway Company
Attorney:B. G. Boone for plaintiffs in error. Wallace Pratt, C. W. Blair and I. P. Dana for defendant in error.
Case Date:July 03, 1893
Court:Supreme Court of Missouri
 
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Page 1081

22 S.W. 1081 (Mo. 1893)

117 Mo. 405

York et al., Plaintiffs in Error,

v.

The Kansas City, Clinton & Springfield Railway Company

Supreme Court of Missouri, First Division

July 3, 1893

Error to Henry Circuit Court. -- Hon. Jas. H. Lay, Judge.

Affirmed.

B. G. Boone for plaintiffs in error.

(1) This right of action is both penal and compensatory, and minority of deceased has nothing to do with the amount of damages to be recovered. Phillpott v. Railroad, 85 Mo. 164. (2) On the question of an established custom of train men, in contradiction of positive rule. Barry v. Railroad, 98 Mo. 62. (3) On the question of contributory negligence. Wagner v. Railroad, 97 Mo. 512, and cases cited. (4) As to liability of railway company, for negligent acts of co-employee, and an unskillful employee. Sullivan v. Railroad, 97 Mo. 113; Daugherty v. Railroad 97 Mo. 664. Who is not a fellow-servant or co-employee in a legal sense. Stephens v. Railroad, 96 Mo. 207; Barry v. Railroad, 98 Mo. 62. (5) The clause or subdivision of the statute restricting and confining this form of action to passengers alone, refers to cases when the damages claimed resulted from defective railroad and machinery, and does not apply to cases like the one at bar, when damages claimed is for negligence, and carelessness of an officer of the road, or to one holding a superior position over the party injured or killed. Higgins v. Railroad, 36 Mo. 418. (6) On the question of jumping or sliding off end of the push or flat car when in motion. Adams v. Railroad, 74 Mo. 553; Stephens v. Railroad 86 Mo. 221. These cases show that a person is not expected to exercise same care, prudence and judgment, when trying to extricate himself from danger, as he is when in no danger and has possession of all his faculties. 74 Mo. 533; 86 Mo. 221; 31 N.Y. 314; 89 Pa. St. 59; 43 N.Y. 121; 44 Wis. 638. (7) If the master or servant standing in the position or relation of vice-principal, orders an employee under him into a place of danger, or orders him to perform labor which subjects him to danger, which the master or vice-principal knows of, or could by ordinary care and prudence know of, and does not inform employee or subordinate, and the latter is ignorant of such danger, and he obeys and is killed or injured, the law will not charge deceased or injured party with contributory negligence. Miller v. Railroad, 12 F. 600; 17 F. 67; 36 Iowa 372; 76 Pa. St. 389; 24 N.Y. 410. (8) The negligence of the foreman of section men is the negligence of the master, and not that of the fellow-servant or co-employee. Higgins v. Railroad, 43 Mo.App. 547; Bowen v. Railroad, 95 Mo. 278; 71 Mo. 67; 86 Mo. 639. (9) The servants and employees of railroad companies have a right to rely upon the performance of duties imposed by law on railway companies. 1 Thompson on Negligence, sec. 3, p. 461; Goodfellow v. Railroad, 106 Mass. 462; 32 N.Y. 337; 33 Md. 542. (10) The risk a co-employee and fellow-servant assumes is announced in the following cases. Renfro v. Railroad, 86 Mo. 302; Flynn v. Railroad, 78 Mo. 195; Porter v. Railroad, 71 Mo. 66; 69 Mo. 416; 67 Mo. 239; 62 Mo. 35. (11) The court manifestly erred in giving the instruction in the nature of a demurrer to the evidence, as asked by defendant, and thereby taking the case from the consideration of the jury. The court should not take the case from the jury if there is any evidence, however slight, tending to sustain the...

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