31 S.W. 347 (Mo. 1895), Burnes v. Kansas City, fort Scott & Memphis Railroad Company

Citation:31 S.W. 347, 129 Mo. 41
Opinion Judge:Gantt, P. J.
Party Name:Burnes v. Kansas City, Fort Scott & Memphis Railroad Company, Appellant
Attorney:Wallace Pratt, Frank Hagerman and I. P. Dana for appellant. E. P. Gates, Wm. H. Wallace and T. B. Wallace for respondent.
Judge Panel:Gantt, P. J. Burgess and Sherwood, JJ., concur. Burgess and Sherwood, JJ., concur.
Case Date:June 04, 1895
Court:Supreme Court of Missouri

Page 347

31 S.W. 347 (Mo. 1895)

129 Mo. 41

Burnes

v.

Kansas City, Fort Scott & Memphis Railroad Company, Appellant

Supreme Court of Missouri, Second Division

June 4, 1895

Appeal from Jackson Circuit Court. -- Hon. Jas. Gibson, Judge.

Reversed.

Wallace Pratt, Frank Hagerman and I. P. Dana for appellant.

(1) There being an entire failure to prove either actual or constructive notice to defendant of the presence, on the elevated walk, of the piece of door, the court should have directed a verdict in defendant's favor. Railroad v. Platt, 89 Ill. 141; Painton v. Railroad, 83 N.Y. 7; Railroad v. Ledbetter, 34 Kan. 326; Baldwin v. Railroad, 25 N.W. 918; Hough v. Railroad, 100 U.S. 213; Covey v. Railroad, 86 Mo. 635; Crane v. Railroad, 87 Mo. 588; Gutridge v. Railroad, 94 Mo. 468; Williams v. Railroad, 119 Mo. 316. (2) There being also a failure to prove who placed the grain door where plaintiff stepped upon it and no sufficient evidence on which to submit to the jury that question the court should have directed a verdict for defendant. Latch v. Railroad, 27 L. J. Exch. 155; Jones v. Railroad, 45 Up. Can. (Q. B.) 193; Patterson's Railway Accident Law, p. 38; McGowan v. Railroad, 61 Mo. 528; Blessing v. Railroad, 77 Mo. 410; Murray v. Railroad, 98 Mo. 573; Perkins v. Railroad, 103 Mo. 52; Orth v. Railroad, 50 N.W. 363; Flynn v. Beebe, 98 Mass. 575. (3) Even if it should be held that there was evidence tending to show that the door was put or left on the elevated walk by Hearne's men, who transferred grain there (which we deny), yet that did not tend to establish defendant's liability, because they were servants of an independent contractor, who alone was responsible for their acts, if negligent. Parke v. Board, 30 N.E. 147; The Clarita, 23 Wall. 1, 12; Pawlet v. Railroad, 28 Vt. 297; Reed v. Alleghany, 79 Pa. St. 300; Cuff v. Railroad, 35 N. J. Law 1; Waters v. Lumber Co., 20 S.E. (N. Car.) 719; 14 Am. and Eng. Encyclopedia of Law, 830, and cases cited. Long v. Moon, 107 Mo. 334; Morgan v. Bowman, 22 Mo. 538; Hilsdorf v. St. Louis, 45 Mo. 94; Dillon v. Hunt, 82 Mo. 150; Blumb v. Kansas City, 84 Mo. 112; Lancaster v. Ins. Co., 92 Mo. 460. (4) The court erred in giving plaintiff's instruction number 1, and in refusing defendant's instructions number 4, 5, 6, 7, 8, 9, 12 and 13.

E. P. Gates, Wm. H. Wallace and T. B. Wallace for respondent.

(1) There was evidence upon which the jury could find that Hearne or his men left the grain door upon the elevated track: the facts and circumstances afforded a basis for such inference. Lancaster v. Ins. Co., 62 Mo. 121; Soeder v. Railroad, 100 Mo. 673; Kelly v. Railroad, 70 Mo. 604; Jantzen v. Railroad, 83 Mo. 171; Britton v. Railroad, 120 Mo. 437. (2) It is doubtful if Hearne can be regarded as occupying the position of a person exercising an independent employment. But the general rule that one who engages an independent contractor is not responsible for the consequences of the negligence of the contractor in the performance of the work contracted to be done is subject to several exceptions. One of these exceptions is when the person for whom the work is done owes a duty to the public or an individual, and the negligence of the contractor constitutes a breach of this duty. Wood on Railroads [Ed. 1894], p. 1161, sec. 286. Pickard v. Smith, 10 C. B. N. S. 470; Long v. Moon, 107 Mo. 334; Railroad v. Meadow, 50 Tex. 77; Lowell v. Railroad, 23 Pick. 24; Mayor v. O'Donnell, 53 Md. 110; Russell v. Columbia, 74 Mo. 480; Smith v. St. Joseph, 42 Mo.App. 394; Taubman v. Lexington, 25 Mo.App. 218; Haniford v. Kansas City, 103 Mo. 172; Woodman v. Railroad, 149 Mass. 335. (3) The duty which the master owes to the servant to provide and maintain a reasonably safe place in which to perform the service can not be delegated to an agent or an independent contractor so as to relieve the master from liability for an injury occasioned by its neglect. This is a duty which can only be discharged by the performance of it. The testimony was that Hearne had charge of this incline. Trainor v. Railroad, 137 Pa. St. 148; Lewis v. Seifert, 116 Pa. St. 647; Kuhn v. Railroad, 77 Hun, 389; Kimmer v. Weber, 76 Hun, 482; Sanborn v. Flume Co., 70 Cal. 261. (4) The fact that the work which Hearne was employed to perform was a part of the regular business of the railroad company, conducted under the powers and franchises given to it by the state furnishes an additional reason why it can not escape liability by virtue of the contract with Hearne. Speed v. Railroad, 71 Mo. 309; McWilliams v. Dotroit Mill Co., 31 Mich. 274; Harmon v. Railroad, 28 S.C. 401; Grand Tower Co. v. Ullman, 89 Ill. 244; Rickets v. Railroad, 33 W.Va. 433; Railroad v. Culbertson, 72 Tex. 375; Railroad v. Mayes, 49 Ga. 355; Railroad v. Whipple, 22 Ill. 105; Railroad v. Conroy, 39 Ill.App. 351. (5) The railroad company being responsible for the acts of Hearne and his men, no notice of the existence of the obstruction was required. In contemplation of law the defendant itself placed the obstruction on the elevated structure. Russell v. Columbia, 74 Mo. 480; Haniford v. Kansas City, 103 Mo. 172; Davenport v. Hannibal, 108 Mo. 471. (6) If Hearne was in the position of an independent contractor, no question growing out of the relation of fellow servants arises. If a servant, he was, according to the testimony of all the witnesses, in a different department of the service, and he and his men were not fellow servants with the plaintiff. Sullivan v. Railroad, 97 Mo. 113. (7) The court did not err in its rulings or the instructions.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

[129 Mo. 45] Gantt, P. J.

This is an action for personal injuries sustained by the plaintiff while in defendant's employ as foreman of a switching crew in its yards at Kansas City, Missouri.

The petition alleged plaintiff was hurt by the negligence of the defendant in two respects: First, it required him to work in a dangerous place, to wit, on a certain inclined track; and, second, "by carelessly permitting a grain door from a car to be left lying on said elevated incline, on which he stepped in the dark and was thereby thrown to the ground and his leg broken."

The first charge of negligence was withdrawn from the jury by the court, and, as plaintiff is not appealing, will require but little consideration. The answer was a general denial and contributory negligence. The following facts appeared in evidence:

On February 10, 1891, plaintiff was employed by defendant as foreman of a switching crew which worked in its yards at night. He was thirty-six years old, an experienced switchman, and had been in railroad service of various kinds for eighteen years and had worked for many years in these same yards. Plaintiff was hurt by stepping upon what is called a grain door, which had been left or placed by someone upon an elevated track belonging to defendant, and was thereby thrown to the ground and his leg broken. This elevated track was used for transferring grain from one train to another.

It appeared that when grain consigned to points beyond Kansas City and was delivered to the defendant company at that place in cars that were in bad order, so that it was not safe to send them forward, or in cars [129 Mo. 46] [SEE ILLUSTRATION IN ORIGINAL] [129 Mo. 47] belonging to companies which did not allow them to go further south than Kansas City, it was necessary to transfer the grain into other cars that were in good order and would be allowed by the companies owning them to carry the grain to destination. To facilitate this transfer, the elevated track was constructed; the print and photographs filed as exhibits herewith give its appearance and how it was constructed. It rose gradually from the level of defendant's yards, running therefrom northwardly, first on an earth embankment ninety feet long, and then on trestle work two hundred and four feet, which brought it to a level of about six feet above the ground on the easterly side; it then ran at this elevation on a trestle, a distance of six hundred feet, where at its north end it stopped abruptly with a post or rail to prevent cars running off. Thus it will be seen, cars left upon the elevated track were six feet above the cars placed on the track located on the surface of the ground just east of the elevated track and marked on the print in evidence, track number 40

The practice was to shove upon this elevated track cars loaded with grain, which were to be transferred, and leave them upon the level portion thereof; then empty cars, into which the grain was to be put, were run in on track number 40, and the grain was transferred by running a kind of a trough or chute from the door of the upper car into the door of the opposite lower car, making an angle of about forty-five degrees; then upon opening the door of the loaded car most of the grain would run into the lower car and the rest of it was easily shoveled from the ends of the loaded car into the chute. In the loading and unloading of bulk grain there...

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