46 Mo. 163 (Mo. 1870), Gibson v. Pacific R. Co.

Citation:46 Mo. 163
Opinion Judge:WAGNER, Judge.
Party Name:GEORGE W. GIBSON, Respondent, v. THE PACIFIC RAILROAD COMPANY, Appellant.
Attorney:Whittelsey, for appellant. Terry & Terry, and Stewart & Wieting, for respondent.
Court:Supreme Court of Missouri

Page 163

46 Mo. 163 (Mo. 1870)

GEORGE W. GIBSON, Respondent,



Supreme Court of Missouri.

March Term, 1870

Appeal from St. Louis Circuit Court.

Whittelsey, for appellant.

I. The master is not liable to his servant for the acts of a fellow-servant, and the difference in grade of employment does not alter the rule. (Wilson v. Merry, 1 L. R. H. L., Sc., 326; Tarrant v. Webb, 37 Eng. L. & Eq. 281; Priestly v. Fowler, 3 M. & W. 1; Wigmore v. Jay, 5 Exch. 354; Hutchinson v. York, etc., R.R., 5 Exch. 343; Wiggett v. Fox et al., 36 Eng. L. & Eq. 486; 11 Exch. 832; Scott v. Mayor, etc., of Manchester, 38 Eng. L. & Eq. 477; Hard, Adm'r, v. Verm. Car. R.R., 3 Verm. 473; Walles v. S. E. R.R. Co., 3 Hurl. & Co. 102; Faulkner v. Erie R.R. Co., 49 Barb. 324; Ryan v. Fowler, 24 N.Y. 410; Keegan v. West, 8 N.Y. 175; Marshall v. Stewart, 33 Eng. L. & Eq. 1; Patterson v. Wallace, 28 Eng. L. & Eq. 48; Wright v. N.Y. Cent. R.R., 25 N.Y. 562; 17 N.Y. 153; Russell v. Hudson River R.R., 17 N.Y. 134.) The rule applicable to injuries caused by negligence of fellow-servants is declared in Rohback v. Pacific R.R., 43 Mo. 187; McDermott v. Pacific R.R., 30 Mo. 115; Little Miami R.R. v. Stevens, 20 Ohio 415; Faulkner v. Erie R.R., 49 Barb. 324.

II. The first instruction asked by and given for the plaintiff laid down an erroneous rule of law, as applicable to the facts of the case, for the guidance of the jury. There was no evidence whatever that the defendant--that is, its board of directors or its superintendent--knew of this defect in the repair of the spring; and to charge that " the defendant might have known, by the exercise of reasonable care and diligence," is to require a personal supervision, and forbid the employment of servants and agents without accepting a personal responsibility for their acts--a duty the law does not impose. (See opinions of Lord Chancellor and of Lords Cranworth and Chelmsford in Wilson v. Merry et al., supra; Bartonshill Coal Co. v. Reid, 3 McQueen 282, cited in Wilson v. Merry.)

III. The defendant was not compelled to warrant the perfection of its machinery and cars; it could only use care and diligence to furnish complete machinery. The burden of proof was upon plaintiff to show that the company had knowledge of the defect. He alleged that fact in his petition, and the only evidence in proof of the allegation was that there was a defect. (Mobile & Ohio R.R. Co. v. Thomas, 8 Ann. Law Reg., N. S., 154; Wilson v. Merry et al., supra; Tarrant v. Webb, 37 Eng. L. & Eq. 281.) The qualification " that defendant might have known" wholly destroys the effect of the instructions given for the defendant, and the instructions put the case to the jury on an erroneous hypothesis as to the facts.

Terry & Terry, and Stewart & Wieting, for respondent.

I. A master is liable to his servants for his negligence. ( Snow v. H. R.R., 8 Allen 445; Keegan v. WesternR.R., 4 Seld. 175; Noyes v. Smith, 28 Verm. 62; Ryan v. Fowler, 24 N.Y. 413; Wright v. N.Y. Cent. R.R., 25 N.Y. 565; Marshall v. Stewart, 33 Eng. L. & Eq. 7.)

II. The degree of negligence is to be determined by the situation and surroundings of the business of the master, and the occupation of the servant. If the danger to which the master exposed his servant is great, the vigilance of the master is proportionately increased. The degree of care required is higher when life and limb are endangered. ( Cayzer v. Taylor, 10 Gray 274; Loomis v. Terry, 17 Wend. 496; Castle v. Duryea, 32 Barb. 480; Morgan v. Cox, 22 Mo. 373.) The position in which the defendant was placed was dangerous in the extreme, and the care and vigilance of the defendant were correspondingly increased. As to what constitutes a dangerous occupation, see 36 Mo. 23, 25, 354.

III. The master is bound to place in the hands of his servants, as the law declares, good and sound machinery, and use all reasonable precaution for the safety of his employees. (Ryan v. Fowler, 24 N.Y. 420; Buzzell v. Laconia Manuf. Co., 48 Me. 113; Hallower v. Henley, 6 Cal. 209; Noyes v. Smith, 28 Verm. 59; Cayzer v. Taylor, supra; Frazer v. Penn. R.R., 38 Penn. St. 104; McDermott v. P. R.R., 30 Mo. 115.)

IV. The principle, that the master is not responsible for injuries inflicted on one servant by another, is applicable only when the injury happens without any fault or misconduct, such as carelessness and neglect in the master, either in the act which caused the injury or the person who caused it. ( Perry v. Marsh, 25 Ala. 659; Patterson v. Wallace, 28 Eng. L. & Eq. 48; Marshall v. Stewart, 33 Eng. L. & Eq. 1; Mad River & L. E. R.R. v. Barber, 5 Ohio St. 541; Fifield v. Northern R.R., 42 N.H. 225.)

V. The effect of the fourth instruction would have been, if allowed, to relieve the master of all liabilities unless he had knowledge of the condition of the machinery used by him. This, as a proposition of law, may be good in cases where the master had immediate control of his affairs; but as a proposition of any force in cases where the charge and oversight of the business are delegated to other parties, as must be done in corporations, it has no weight. The board of directors had delegated their power of representation to their superintendent, and his acts must be held to be the acts of the board. One to whom the employer commits the...

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