26 S.W. 661 (Mo. 1894), Coontz v. The Missouri Pacific Railway Company

Citation:26 S.W. 661, 121 Mo. 652
Opinion Judge:Black, P. J.
Party Name:Coontz v. The Missouri Pacific Railway Company, Appellant
Attorney:H. S. Priest and Wm. S. Shirk for appellant. A. R. Taylor for respondent.
Case Date:May 14, 1894
Court:Supreme Court of Missouri

Page 661

26 S.W. 661 (Mo. 1894)

121 Mo. 652

Coontz

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, First Division

May 14, 1894

Appeal from St. Charles Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

H. S. Priest and Wm. S. Shirk for appellant.

(1) The court below erred in refusing to give defendant's instruction, in the nature of a demurrer to plaintiff's evidence, at the close of his case. If the engineer negligently performed this duty, it was the negligence of a fellow servant of plaintiff, and he can not recover. McKinney on Fellow Servants, p. 282; Ragsdale v. Railroad, 62 Tenn. 426; Railroad v. Martin, 17 Am. and Eng. R. R. Cases, 592; McDonald v. Railroad, 18 N.Y.S. (Sup.) Rep. 609; Dodge v. Railroad, 29 N.E. 1086; Higgins v. Railroad, 104 Mo. 413; Sherrin v. Railroad, 103 Mo. 378. (2) It is universally held that a conductor can not recover for the negligence of a brakeman working under him, for the reason that the brakeman is the subordinate of the conductor. So it is with the engineer, and so the evidence shows in this case. The same rule should apply to the negligence of one subordinate as to another. As to negligence of brakeman, see McKinney on Fellow Servants, p. 267, and list of cases cited in note 4; Pilkenton v. Railroad, 7 S.W. 805; Railroad v. Andrews, 50 F. 728; Randall v. Railroad, 109 U.S. 322; Ragsdale v. Railroad, 62 Tenn. 426. (3) There is no negligence shown. The engine had been in the shops at St. Louis for repairs about a month or six weeks before. The engineer examined and inspected the engine every morning, and the very morning of the accident he made the regular examination, and looked the engine over to see if it was all right. The only evidence of any negligence on defendant's behalf, or any of its employees, is the mere fact that the accident occurred. This is not sufficient evidence of negligence. Elliott v. Railroad, 67 Mo. 272; Murphy v. Railroad, 71 Mo. 202; Huffman v. Railroad, 78 Mo. 54; Gutridge v. Railroad, 94 Mo. 468; Railroad v. Hughes, 119 Pa. St. 301. (4) The court erred in refusing to allow the witness Leathers to testify that engines, tenders and cars frequently leave the track without any ascertainable cause. It tended to throw light upon the question, whether, if there was a crack in the wheel, it was the cause of the tender leaving the track or not. (5) The verdict of the jury is so grossly against the evidence and the weight of the evidence, that it should not be allowed to stand. There can be but one cause for its rendition, viz., passion or prejudice on the part of the jury. The verdict is not based upon any substantial evidence whatever. Reid v. Life Ins. Co., 58 Mo. 421; Bank v. Armstrong, 92 Mo. 265; Hepley v. Railroad, 88 Mo. 348; St. L. B. Co. v. Bodeman, 12 Mo.App. 573; Clark v. Hairly, 30 Mo.App. 335; Peck v. Railroad, 3 Mo.App. 125; Whitsett v. Ransome, 79 Mo. 258; Spohn v. Railroad, 87 Mo. 74; Thrings v. Railroad, 7 Robertson (N. Y.), 616.

A. R. Taylor for respondent.

(1) It was the engineer's duty to inspect and repair the machinery of the engine when on the road, and this was a duty the defendant as master owed to the plaintiff. O'Mellia v. Railroad, 115 Mo. 211. (2) The foregoing duty the defendant could not delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed, no duty required of him for the safety and protection of his servant can be transferred so as to exonerate him from such liability. Railroad v. Herbert, 116 U.S. 647; Flike v. Railroad, 53 N.Y. 549; Corcoran v. Holbrook, 59 N.Y. 517; Fuller v. Jewett, 80 N.Y. 46; Pantzer v. Iron Co., 99 N.Y. 368; Ford v. Railroad, 110 Mass. 240; Shanney v. Mill Co., 66 Maine, 420; Bessex v. Railroad, 45 Wis. 477; Railroad v. Conroy, 68 Ill. 560; Drymola v. Thompson, 26 Minn. 40; Blanton v. Dold, 109 Mo. 75; Gutridge v. Railroad, 105 Mo. 528; Bowen v. Railroad, 95 Mo. 278; Browning v. Railroad, 24 S.W. 731. (3) Of course, where the master delegates the duty of inspection and repair to a servant, if, by the exercise of due care in inspection such servant could have discovered such defect, then such fact imparts notice to the defendant master. Covey v. Railroad, 86 Mo. 641; Porter v. Railroad, 71 Mo. 79.

OPINION

Page 662

[121 Mo. 655] Black, P. J.

This is an action for personal damages. The pleadings are the same as they were when the case was here on a former appeal (115 Mo. 669), with the exception that the petition was amended so as to admit evidence of loss of earnings. The case was submitted to the jury on the last trial on these issues: whether the wheel of the engine tender was cracked so as to render it unfit for use, and whether the defendant knew, or by the exercise of ordinary care might have known, of the unsafe condition of the wheel in time to have repaired it, and thereby avoided the injury. All other issues tendered by the petition were instructed out of the case.

The assigned errors to be considered are: that the court erred in overruling the defendant's demurrer to the plaintiff's evidence; that the verdict, which was for plaintiff, is in flagrant disregard of the evidence; and that the...

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