Keown v. The St. Louis Railroad Company

CourtUnited States State Supreme Court of Missouri
Citation41 S.W. 926,141 Mo. 86
PartiesKeown v. The St. Louis Railroad Company, Appellant
Decision Date17 July 1897

Rehearing Denied 141 Mo. 86 at 96.

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Reversed.

Smith P. Galt and Sim. T. Price for appellant.

The trial court erred in refusing to give defendant's instruction for a nonsuit offered at close of entire case. (1) Because there was no evidence to show that John Willum was guilty of actionable negligence that caused Barber A Keown's injury. Patterson, Railway Accident Law, secs. 71, 268; Strauss v. Railroad, 75 Mo. 185; 16 Am. and Eng. Ency. Law, pp. 389-412; Cooley on Torts, 660; Barker v. Railroad, 98 Mo. 54; Yarnell v. Railroad, 113 Mo. 570; Ring v. Railroad, 112 Mo. 220; Jackson v. Railroad, 104 Mo. 457; Rutledge v. Railroad, 123 Mo. 136; Weaver v. Railroad, 60 Mo.App. 207; Moore v. St. Louis Wire Mills Co., 55 Mo.App. 496. (2) Because the evidence showed that John Willum and Barber A. Keown were fellow servants. McGowan v. Railroad, 61 Mo. 528; Marshall v. Schricker et al., 63 Mo. 309; Parker v. Railroad, 109 Mo. 362; Sullivan v. Railroad, 97 Mo. 113; Dixon v. Railroad, 109 Mo. 413; Relyea v. Railroad, 112 Mo. 86; Sherrin v. Railroad, 103 Mo. 378. (3) Because not only plaintiff's evidence, but the entire evidence conclusively and indisputably showed that Barber A. Keown's negligence was the direct and immediate cause of his injury. In such cases there can be no recovery. Maher v. Railroad, 64 Mo. 267; Prewitt v. Eddy, 115 Mo. 304; Harlan v. Railroad, 64 Mo. 480; McKenna v. Railroad, 54 Mo.App. 168; Watson v. Railroad, 34 S.W. 574; Smith v. Railroad, 52 Mo.App. 41; Weber v. Railroad, 100 Mo.App. 201; Hudson v. Railroad, 101 Mo. 13. (4) There was no causal connection shown between Barber A. Keown's injury as alleged and his death. Schlereth v. Railroad, 115 Mo. 110; Yarnell v. Railroad, 113 Mo. 570; Wintuska's Adm'r v. Railroad, 20 S.W. 819; 1 Sutherland, Damages, sec. 34; Patterson, R. A. L., p. 13.

John A. Talty and A. R. Taylor for respondent.

(1) John Willum was guilty of actionable negligence. Hughlett v. Ozark Lumber Co., 53 Mo.App. 87; Dayharsh v. Railroad, 103 Mo. 570. (2) John Willum and Barber A. Keown were not fellow servants. Willum was the vice-principal of the defendant. Some of the cases cited by the appellant were decided years ago when the rule in Missouri was that all employees of a common master engaged in a common employment, who had no authority to employ and discharge hands, were fellow servants. But this rule has long since been modified so as to exclude from the common service those who are clothed with authority to direct and control the movements of men placed under him. Moore v. Railroad, 85 Mo. 588; Dayharsh v. Railroad, 103 Mo. 570; Hughlett v. Ozark Lumber Co., 53 Mo.App. 87; Hutson v. Railroad, 50 Mo.App. 300; Smith v. Railroad, 92 Mo. 359; Miller v. Railroad, 109 Mo. 350. (3) The law presumes that Keown at the time of the accident was exercising due care. Flynn v. Railroad, 78 Mo. 196. (4) Even if Keown saw Willum, he certainly had no reason to believe that Willum was going to carelessly and negligently start the cars with a "very sudden jerk and with full speed," in a way that "would have thrown any man off, even if he had a good hold." Dixon v. Railroad, 109 Mo. 413. (5) In assignment 4 appellant attempts to argue that there was no causal connection shown between Keown's injury and death. The proof is abundant and positive. Hutson v. Railroad, 50 Mo.App. 300; Dayharsh v. Railroad, 103 Mo. 576.

Barclay, P. J. Macfarlane, Robinson and Brace, JJ., concur.

OPINION

Barclay, P. J.

Mrs. Keown sued for statutory compensation on account of the death of her husband which is charged to have resulted from negligence of the defendant -- a street railroad company -- operating a train of cars on Broadway in St. Louis. The answer was a general denial, except as to the facts of defendant's incorporation and of Mr. Keown's employment by defendant. There was also a plea of contributory negligence, which plaintiff's reply put in issue.

The cause originated in the city of St. Louis, but was duly removed to the county of St. Louis, where it was tried with the aid of a jury. It appeared in evidence that Mr. Keown was injured March 16, 1892, in the following circumstances:

He was a gripman of defendant's car line, which was then operated by means of a cable. The accident occurred in the early morning, within a few minutes of 5 o'clock, when Keown was going to take his regular place for work on a grip car.

The car had just been drawn out of the car house in which it had been stored during the night. The house is on the east side of Broadway near Salisbury street. The defendant's line runs north and south on Broadway in front of the house. The tracks from the interior of the car house join the main line by means of curves. Just before the accident a grip car and a "trailer" (or ordinary passenger coach) had been drawn out of the car house by horse power. The trailer was left standing on the curve. The grip car was in front, on the east track of the main line, facing north. Both cars were at rest and were coupled together. There was an electric light hanging over the spot, or quite near. It was about daybreak. A man could be seen across the street, according to plaintiff's witnesses. There were lights on the grip car, as well as upon a south bound train, running on the west track of the main line at the time of the catastrophe. The "trailer" car was not lit up. In the trailer, as it stood on the curve, were the conductor and Keown, the gripman. The latter undertook to pass from the front step of the trailer to the grip car, on the west side of the cars. In doing so he took hold of the hand-rail on the trailer with his right hand and reached over with his left hand to the rail on the grip car. At that moment the cars were suddenly started, causing Keown to lose his hold, and to fall westward, so that he was struck by the south bound grip car of the passing train on the west track. The quick movement of the train was due to Willum's management of the machinery used to connect with the moving cable. Willum was then at the gripman's post on the north bound car. He was the assistant superintendent of the defendant, commonly called the starter or foreman. His general duties were to attend to the receipts of each car, to assign the employees to cars, and generally to direct the practical operation of the line at that place, subject to one or two higher officials, who were present there only occasionally. It was Mr. Willum's special duty to see that the cars were brought out of the car house on time, and started for their regular trips with the proper men in charge. If a regular man assigned to a car did not appear in order to go on duty by the appointed time, Mr. Willum put a substitute (or "extra") in his place for the occasion. Keown was subject to the orders of Willum as to starting the car.

It was a general rule of the defendant that no one but the gripman should start the car; but the foreman Willum had full power to direct the movements of the men and to manipulate the grip, if need be, in getting the train into position for regular service. When Mr. Willum proceeded to start the grip car, he stood in the "box," or open space intended for the gripman. He then used a long iron hook, which he introduced through the slot into the conduit beneath the street, so as to lift the cable or "rope," permit the grip to catch on, and thus impart momentum to the car. It was not Willum's purpose to begin a regular trip, for the gripman Keown had not yet reported to take the car out, and no one had been assigned to his place. Willum's object evidently was to move the train only a short distance north, to clear the way for other trains to be brought out of the car house and made ready to start. According to plaintiff's testimony, the start of the grip car was too sudden and abrupt, and Keown in consequence was shaken off on the side toward the car going south on the west track. That car was going at a brisk rate, and it struck Keown with such force as to injure him severely. He died in December, 1893, as a result of the accident.

The following piece of evidence came out (without objection) on the direct examination of one of plaintiff's witnesses, viz:

"Q. Immediately after the accident, did you have a talk with Willum about it? A. I stepped on the train as the train went out from the place where it was standing -- I stepped on the car and went up there to Willum. I went up to him because he was the man I expected to get work from, if any, and I spoke to him about the accident. I said, 'Do you know there was a man got hurt back there?' He said 'No,' and I said 'There was a man fell off the car as you started,' and he said something about starting the car a little quicker than he intended to."

There was no other testimony bearing on the question of Willum's knowledge of Keown's position at the time the grip car was started northward, except that of Willum, who [on behalf of defendant] testified that he did not see Keown before he started the car.

The foregoing statement presents the substantial facts of plaintiff's case on the merits, omitting only some merely formal matters.

On the defendant's side, the testimony tended to show that the car did not start suddenly, but gently, and that Keown was struck by the passing train on the west track, as he tried to swing from the trailer to the grip car.

The leading instruction given by the court to the jury at the instance of plaintiff was as follows (dropping only the parts which refer to plaintiff's relationship to the deceased and to the facts of his...

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