46 S.W. 172 (Mo. 1898), McCarty v. Rood Hotel Company

Citation:46 S.W. 172, 144 Mo. 397
Opinion Judge:Sherwood, J.
Party Name:McCarty, Appellant, v. Rood Hotel Company
Attorney:John R. Christian for appellant. A. & J. F. Lee for respondent.
Judge Panel:Sherwood, J. Burgess, J., does not concur as to that portion of the opinion which relates to fellow-servants.
Case Date:May 31, 1898
Court:Supreme Court of Missouri

Page 172

46 S.W. 172 (Mo. 1898)

144 Mo. 397

McCarty, Appellant,


Rood Hotel Company

Supreme Court of Missouri, Second Division

May 31, 1898

Appeal from St. Louis City Circuit Court. -- Hon. P. R. Flitcraft, Judge.


John R. Christian for appellant.

If the plaintiff and Thompson were not fellow-servants, and Thompson negligently caused the injury without negligence on the part of plaintiff, defendant is liable. If, on the other hand, they were fellow-servants, and Thompson injured plaintiff while obeying E. E. Sumner, there can be no question but that plaintiff can recover. The question of contributory negligence is not before the court, as there is no evidence to sustain that defense. Foster v. Railroad, 115 Mo. 165; Rowland v. Railroad, 20 Mo.App. 463; Schaub v. Railroad, 106 Mo. 74; Covey v. Railroad, 27 Mo.App. 177; Barry v. Railroad, 98 Mo. 62; Moore v. Railroad, 85 Mo. 588; McDermott v. Railroad, 87 Mo. 285; Smith v. Railroad, 92 Mo. 368; Ischer v. St. Louis Bridge Co., 95 Mo. 265; Dutze v. Geisel, 23 Mo.App. 681; Corbett v. Railroad, 26 Mo.App. 628; Francis v. Railroad, 110 Mo. 387; Schroeder v. Railroad, 108 Mo. 328; Bluedorn v. Railroad, 108 Mo. 447; Marshall v. Schricke, 63 Mo. 308; Card v. Eddy, 129 Mo. 510; Miller v. Railroad, 109 Mo. 350; Dickson v. Railroad, 109 Mo. 419; Young v. Shickel Co., 103 Mo. 328.

A. & J. F. Lee for respondent.

(1) There can be no recovery for any act contributing to an injury unless it be the proximate cause of that injury. Wallace v. Railroad, 59 Mo.App. 426; In so far as Sumner is concerned, there is no reason to suppose that he or any other man of ordinary prudence would have foreseen the consequences which arose from his order. (2) We take it to be clear beyond question that the plaintiff and the elevator boy were fellow-servants. They were in the same department of a common employment, subject to the orders of a common master. Rowland v. Railroad, 20 Mo.App. 469; Card v. Eddy, 129 Mo. 517. (3) The plaintiff himself knew where he was working, knew he was just beneath the counterweights; knew if they descended while his hand was there they would catch his hand, and yet worked there. If there was any negligence in this action, it was certainly his negligence and not that of Sumner or the elevator boy. (4) The petition does not state that Sumner was guilty of any negligence in the giving of the order to the elevator boy. The sole cause...

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