Card v. Eddy

• Decision Date: 22 December 1894
• Parties: CARD v. EDDY et al.
• Court: Missouri Supreme Court

28 S.W. 979

129 Mo. 510

CARD v. EDDY et al.

Supreme Court of Missouri.

December 22, 1894.

INJURY TO RAILROAD EMPLOYE — FELLOW SERVANTS.

1. Plaintiff, a section foreman on the railroad operated by defendants as receivers, was injured by coal thrown from a passing engine by the fireman, who had fastened it to a letter of instructions given him by the road master for delivery to plaintiff. Held, that the receivers were not liable, as principals, for the negligent manner in which the fireman delivered the message. Barclay, Brace, and Burgess, JJ., dissent.

2. Where a road master, who was the immediate overseer of the work done by plaintiff as section foreman, delivered to a fireman a letter of instructions, to be given to plaintiff as the engine passed him on the road, and plaintiff, by the fireman's signals, knew that he had a message for him, and signaled in return for its delivery, but was injured by a piece of coal to which the fireman fastened the letter before throwing it, plaintiff and the fireman, having co-operated in the particular business in hand, were fellow servants. Barclay, Brace, and Burgess, JJ., dissent.

In banc. Appeal from circuit court, Cooper county; E. L. Edwards, Judge.

On rehearing. Overruled. For former opinion, see 28 S. W. 753.

Jackson & Montgomery, for appellants. John R. Walker, for respondent.

MACFARLANE, J.

I adopt, in substance, the statement made by BARCLAY, J., to his opinion filed in division 1, 24 S. W. 746.

This is an action for personal injuries, grounded on negligence. The defendants are the receivers of the Missouri, Kansas & Texas Railway Company. The pleadings need not be specially recited. The case was tried before the court and a jury, with the result of a verdict and judgment for plaintiff for $3,000, from which defendants appealed. That defendants were receivers, in possession of and operating the railway line where the injury happened, was admitted; and also that plaintiff was at the time in their employ as a section foreman. The plaintiff offered evidence tending to prove that one day in June, 1889, he and several laborers, under his direction, were at work along the defendant's railway, some three miles from Clifton station. At that place the track was laid upon an embankment. While thus engaged, a train approached, and the fireman on the locomotive, as it passed, threw out a piece of coal, which struck plaintiff in the left eye, and destroyed the latter. It had been the custom for many years to transmit orders of the road master to the section foreman along the road by forwarding the same to the nearest station, and then sending the message by some employé on the next train, who would throw the message off in passing the party for whom it was intended. In this instance the message of the road master was placed in charge of the fireman. It was inclosed in an envelope. The fireman tied it, with a string, around a piece of coal, about 3 by 1½ inches in size, and while passing the spot where plaintiff was standing (about 4 feet from the track) threw the message and coal to him in such a manner that his eye was put out. Considerable evidence was submitted to show that the traffic (or operating) and road (or construction) departments of this railway were separately managed and directed, each under the supervision of a chief superintendent. The defendants' evidence (so far as it contradicted plaintiff's) was directed entirely to the question of the extent of plaintiff's damages, but as no issue is made, in this appeal, on that point, we need not go into it. The foregoing is a sufficient sketch of the material features of the case.

Defendants insist that plaintiff and the fireman, in the circumstances, were mere fellow servants, and the receivers were not therefore liable for the negligence of the one which resulted in the injury to the other. Counsel for plaintiff, on the other hand, insists that defendants are liable for the injuries caused by the negligent manner in which the message was delivered upon one of two grounds: First. That the fireman, in performing the duty imposed upon him, was the agent, or vice principal of the receivers, and his negligence was that of his principal. Second. That if the fireman was not a vice principal of defendant, then he and plaintiff were mere servants of a common master. Their employment was in different parts of the service, and the receivers were not exempt from liability on account of the fellow-servant rule.

1. I am able to see no possible ground upon which the first contention can be sustained. I agree, as claimed, that power to control and direct is not an absolute test by which to determine whether the relation of one employé to another is that of vice principal. The liability of the master for injury done to one servant through the negligence of another engaged in the same department of service is made "to depend upon the character of the act in the performance of which the injury arises, without regard to the rank of the employé performing it. If it is one pertaining to the duty the master owes to his servants he is responsible to them for the manner of its performance." Flike v. Railroad Co., 53 N. Y. 549; Crispin v. Babbitt, 81 N. Y. 516; Ford v. Railway Co., 110 Mass. 240. If, therefore, a careful delivery of the message was a duty the receivers personally owed to the plaintiff, the mere rank or grade of the fireman would not relieve them from liability if plaintiff was injured by a negligent performance of the duty. The liability on this ground must be determined from the character of the act performed. If it was one the receivers owed to plaintiff, it was their act. If it was one falling simply within the duty of the servant, it was the act of the servant, and the defendants would not be liable for its negligent performance, assuming that the relation of plaintiff and the fireman did not bring them within the department rule. The act the fireman was required to perform was the delivery from a running train of a message to the plaintiff. It cannot matter how important the message may have been, nor that it contained an order the receivers, through their road master, or other agent, was required to give. The injury did not result from the nature of the message or from a failure to transmit it. The service required of the fireman was that of a servant, which any messenger could have performed, and the manner of its delivery did not pertain to the duty the receivers owed to plaintiff. They owed him the duty only of using reasonable care to select a competent and careful messenger. After the master had discharged the duty he owes his servants, such as proper care in the selection of those with whom they are required to work, providing suitable tools and machinery, etc., yet the servants must look to each other for protection in the performance of their respective duties. The fireman can be regarded as the agent or vice principal of the receivers under no test which has ever been applied by the courts of this state, or elsewhere, so far as I have been able to discover. He was given no power to superintend, control, or direct the plaintiff, — which is the usual test; nor was he performing a duty the receivers owed to plaintiff other than such as they owed to every other employé in their service. Miller v. Railway Co., 109 Mo. 350, 19 S. W. 58, and cases cited.

2. That plaintiff and the fireman were, in this general employment, working in different and distinct departments of the business of the receivers, is unquestioned. That one employé of a railroad company, while engaged in the road department as a section hand, and another one, while working in the operating department, as an engineer or conductor, are not fellow servants within the rule exempting the company from liability for the injury inflicted to one by the negligence of another, has been declared by this court in several recent cases. Dixon v. Railroad Co., 109 Mo. 419, 19 S. W. 412; Schlereth v. Railway Co., 115 Mo. 87, 21 S. W. 1110; Sullivan v. Railway Co., 97 Mo. 117, 10 S. W. 852; Parker v. Railroad Co., 109 Mo. 491, 19 S. W. 1119. In none of these cases was an attempt made to establish a rule which could be applied to all cases. Each was made to depend upon its own facts. It was said in the Dixon Case, supra: "We will not essay to establish any definition of fellow service to enlighten (or increase) the difficulties of this branch of the law, but shall merely deal with the facts before us." In most cases the relation of the servants can easily be determined under the rule declared upon the facts in that case. The injured quarryman and the negligent engineer were held not to be fellow servants, for the reason that "each looked to a different individual as the master's representative for direction in his work, and had no practical connection with the supervisor who guided and supervised the acts and conduct of the other." Under the facts in the Parker Case, supra, Black, J., says: "The real and only point of distinction, it seems to us, arises out of the fact that the servants are so associated and related in performance of their work that they can observe and influence each other's conduct, and report any delinquencies to a correcting power. The same judge, in the subsequent case of Relyea v. Railroad Co., 112 Mo. 86, 20 S. W. 480, in referring to the cases above cited, states the rule thus: "These cases reject the rule of exemption as it is often broadly stated, though less frequently applied, that all are coservants who are engaged by the same master in carrying on some general enterprise, no matter how different and disconnected the work may be. They assert the more reasonable and just rule that they are coservants who are so related and associated in their work that they can observe and have an influence over each other's conduct, and report delinquencies to a common correcting power; and they are not coservants who are engaged in...