Harper v. Indianapolis & St. Louis R.R. Co.

• Decision Date: 31 March 1871
• Parties: THOMAS L. HARPER, BY THOMAS WOOD, HIS NEXT FRIEND, Respondent, v. THE INDIANAPOLIS AND ST. LOUIS RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

47 Mo. 567

THOMAS L. HARPER, BY THOMAS WOOD, HIS NEXT FRIEND, Respondent,

v.THE INDIANAPOLIS AND ST. LOUIS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

Hanna, and Garesche & Mead, for appellant.

I. The proof was uniform that the company tolerated the practice of engineers, at switches and on side-tracks, allowing their firemen to handle the locomotive only when the engineer deemed the fireman competent to do so. Even then the fireman was held responsible for the train. (Talmadge, 41.) The instruction ignores the fact altogether, yet it is a most important fact; for if the engineer, Griffith, imprudently confided the locomotive to Blansfield, an inexperienced or unskillful person, it was negligence of Griffith, but for which the company can not be held responsible, because negligence of his co-employee was one of the risks plaintiff assumed when he entered defendant's employment.

II. The company was relieved of liability when it provided a competent fireman and a competent conductor. If plaintiff seeks to recover because the engineer thought the fireman competent, and hence trusted to him the engine, it was his negligence, and plaintiff could not recover. This rule, so strictly enforced by our own decisions, is still more strictly upheld in Illinois, where the accident occurred, and where plaintiff and his father resided. (Cox v. Ill. Cent. R.R., 21 Ill. 25.) In Brinkman v. Cent. RR., 2 Lansing, 514, cited by respondent, the opinion is not adverse to us. It coincides exactly with Gibson v. Pacific R.R., 46 Mo. 163; Stevens v. N. Y. Cent. R.R., 1 Lansing, 110; Dynen v. Leach, 221, 26 Law J., April, 1857; Redf. Railw. 695; Shearman & R. Negligence, 110. This court has ruled that a defendant can not impute a want of vigilance to one injured by his act, as negligence, if that very want of vigilance were the consequence of an omission of duty on the part of the defendant. Had he done his duty and stopped the train the accident could not have occurred. (Kennayde v. Pacific R.R., 45 Mo. 262; Morrissey v. Wiggins Ferry Co., 47 Mo. 521.)

Leverett Bell and E. B. Sherzer, for respondent.

The delegation of authority to the engineer by the defendant, to supply his (the engineer's) place with a fireman, is unquestioned. It is admitted that the fireman was incompetent as an engineer. The act of the engineer was, then, the act of the company, and the result necessarily follows that it was the defendant who permitted and authorized the fireman, Blansfield, to control the engine.

To us it seems clear that if a railroad corporation permit a fireman to manage an engine, it must be held responsible for the consequences. It will not do to say it “believed” him competent, or it had “no knowledge” of his incompetency; for as a part of its duty to and contract with its servants, it agrees to employ or use reasonable efforts to obtain persons fitted for the various duties assigned them; and as it steps out from or transgresses upon the plain dictates of reason and right, it becomes amenable under the law. That a fireman is not an engineer is true; that therefore he is incompetent to fill an engineer's station, follows as a matter of presumption at least. Here the incompetency of the fireman was conceded, and the additional fact given in evidence that he was a fireman with but nineteen days' experience as such, having previously been a laborer. (See Ill. Cent. R.R. v. Jewell, 46 Ill. 101.) Railroad corporations are bound to know the qualifications of their employees.

The authority to supply an engineer's place on a locomotive, by a fireman, is a violation of the company's duty, and in itself evidence of the greatest negligence. No custom can affect it, for it is against law and reason. A railroad corporation can only escape the consequences of such an act by fully and satisfactorily establishing the competency of the fireman to perform an engineer's duties. That defense was not made in this case. The incompetency of the fireman was admitted.

If it be contended by appellant that this action falls within the decisions of this court, upon the doctrine that an injury resulting from the negligence of a fellow-employee is not actionable, we might content ourselves by referring to the opinion of this court, in 44 Mo. 488, as a complete answer to such a proposition. In no sense did the injury herein complained of result from the negligence of a fellow-employee. True it is that the engineer, under an authority to appoint a competent person, appointed one, now admitted by defendant to have been incompetent for the position and duties. But it was the power to appoint one outside of that recognized class of skilled persons known as engineers, to manage the engine, that constituted the negligence complained of in this case. The power was general, and the engineer passed upon the competency. The appointment of an incompetent person, therefore, did not, as to the particular party or act, operate as a revocation of his authority; and defendant will not be permitted to say, if competent, that he was in by authority; if not, that permission was not given.

We say that permission and authority being given the engineer to appoint a fireman to the duties of an engineer, irrespective of the term of his service as such fireman, and pass upon his competency, the engineer does not, under such a power, act in his capacity as engineer. If he appoint an incompetent person, it is not because he is exercising his duties as an engineer in the management of his engine, but by virtue of a superadded and delegated power. He then becomes the agent of the company to select a substitute, and his action binds the company, not from his being an engineer, but in that he is acting by a delegated power, and one such as might be conferred on any other person not an engineer. In no sense does it come under the recognized duties of an engineer, nor flow as an incident from his employment. His act, therefore, in appointing a fireman to the duties of an engineer, being by permission of the company, by virtue of this agency, is the act of the company; and in appointing a fireman--one not an engineer or recognized as such--to an engineer's duties, it becomes the company's negligence. (Cayzer v. Taylor, 10 Gray, 281, approved by this court in Gibson v. Pacific R.R., 46 Mo. 163; Buckner v. N. Y. Cent. R.R., 2 Lansing, 516; Snow v. H. R.R., 8 Allen, 444.)

WAGNER, Judge, delivered the opinion of the court.

This case was here on a former occasion, and will be found reported in 44 Mo. 488. The action was for damages, and after it was sent back by this court for a re-trial, there was an amended petition and a verdict for the plaintiff. The amended petition states “that on the 9th day of July, 1867, plaintiff was in the employ of defendant as conductor of one of its construction trains running on said road; that on said day, while plaintiff was discharging his duties as conductor of said train, he was, without any carelessness or negligence on his part contributing thereto, but solely through the mismanagement of the locomotive engine attached to and drawing said train, thrown on the railroad track and injured, etc.; that the injuries so complained of resulted to plaintiff while he was in the performance of his duties as aforesaid, without any carelessness on his part contributing thereto, solely and directly from the fault, negligence and want of care of defendant, in this: that there was no engineer at said time upon or in charge of said locomotive engine, but the same was then and there, without the knowledge or consent of plaintiff, but with the knowledge and by permission and authority of defendant, being managed and controlled by a fireman, said fireman being then and there, with the knowledge and by permission and authority of defendant, in the performance of an engineer's duties in and about said locomotive engine; that said fireman was not an engineer, nor was he fit or competent to perform the duties of an engineer in and about said locomotive engine, of all which defendant at said time had full and competent knowledge.”

The defendant, answering this petition, failed to deny, and therefore admitted, that the fireman in charge of the engine at the happening of the injury was not fit or competent to perform the duties of an engineer in and about the locomotive engine, and that plaintiff suffered injury. All the remaining allegations of the amended petition were controverted by the answer. Certain affirmative matter stated in the answer was denied in a reply filed by the plaintiff, but it was expressly admitted in the replication that William Griffith, the engineer who had been assigned to the locomotive of the train whereof plaintiff was conductor, was, at the time of the happening of the injury, a competent and skillful engineer.

The following abstract of the testimony presents the essential facts as proved upon the trial: that in February or March, 1866, plaintiff was appointed conductor of a construction train on defendant's railroad, and continued in defendant's service in that capacity until July 9th, 1867, when he suffered the injury complained of. His duties as conductor were to direct the engineer when and where to move the train; to superintend and oversee a party of twenty or thirty laborers attached to the train when at work, and to act as brakesman and switchman where his services in those capacities were required. Plaintiff had no other authority over the engineer than that stated above; and with the management and control of the locomotive he was not permitted to interfere, that being a skilled employment.

The fireman was subordinate to the engineer and not subject to the orders of the conductor. At the time of the happening of the occurrence which gave rise to this suit, William Griffith was engineer of the locomotive attached to the train, and James Blansfield was fireman. Blansfield was appointed...