55 S.W. 108 (Mo. 1900), Grattis v. Kansas City, Pittsburg & Gulf Railroad Company

Citation:55 S.W. 108, 153 Mo. 380
Opinion Judge:MARSHALL, J.
Party Name:GRATTIS v. KANSAS CITY, PITTSBURG & GULF RAILROAD COMPANY, Appellant
Attorney:Trimble & Braley, Benton & Sturgis and John A. Eaton for appellant. Cravens & Cravens and Edward H. Stiles for respondent.
Judge Panel:MARSHALL, J. Gantt, C. J., Sherwood and Valliant, JJ., concur. Burgess, Williams and Robinson, JJ., concur in the judgment of reversal, but do not regard the departmental doctrine as involved in the case. Brace, J., dissents. Gantt, C. J., Sherwood and Valliant, JJ., concur. Burgess and Robinson,...
Case Date:January 10, 1900
Court:Supreme Court of Missouri

Page 108

55 S.W. 108 (Mo. 1900)

153 Mo. 380

GRATTIS

v.

KANSAS CITY, PITTSBURG & GULF RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

January 10, 1900

Appeal from Newton Circuit Court. -- Hon. J. C. Lamson, Judge.

Reversed.

Trimble & Braley, Benton & Sturgis and John A. Eaton for appellant.

(1) The fireman, engineer, brakeman and conductor were fellow servants, and the conductor was not a vice-principal as to either the engineer or fireman. McGowan v. Railroad, 61 Mo. 528; Marshall v. Sticker, 63 Mo. 308; Shaub v. Railroad, 106 Mo. 75; Rutledge v. Railroad, 123 Mo. 121; Ryan v. McCulley, 123 Mo. 636; Sherrin v. Railroad, 103 Mo. 378; Moran v. Brown, 27 Mo.App. 487; Corbett v. Railroad, 26 Mo.App. 621; Railroad v. Petty, 67 Miss. 255; Henry v. Railroad, 49 Mich. 495; Murray v. Railroad, 1 McMullen, 385; Bailey, PerInj. 2363; Railroad v. Elliott, 1 Cold. (Tenn.), 611; Railroad v. Blohn, 75 Tex. 637; 11 S.W. 869; Railroad v. Snyder, 117 Ill. 376; Railroad v. Dolan, 32 Mich. 510; Enright v. Railroad, 93 Mich. 409; Railroad v. Hughes, 29 Miss. 226; Heine v. Railroad, 54 Wis. 525; Wright v. Railroad, 80 F. 260; Jackson v. Railroad, 27 S.E. 278; Elliott on Railroad, secs. 1330, 1333. (2) The fact that the conductor performs one grade of service, the engineer another and the fireman another, or that the fireman is powerless to control the engineer or his movements of the engine, does not destroy the relation of fellow servants. (3) The case of Railway v. Ross, 112 U.S. 377, upon which this case was submitted to the jury, and under which the court instructed the jury, is not applicable to the facts of this case, is not the law of this State and has been limited, criticised and overruled by the Supreme Court of the United States. Railroad v. Baugh, 149 U.S. 368; Railroad v. Hambly, 154 U.S. 349; Railroad v. Keegan, 160 U.S. 259; Railroad v. Peterson, 162 U.S. 346; Bailey on Master and Servant, p. 239; Parker v. Railroad, 109 Mo. 392; Dixon v. Railroad, Ib. 413; Railroad v. Needham, 63 F. 107. (4) The acts of negligence averred in the petition were all eliminated except the stubswitch, the location of the target and the condition of the engine, neither of which was the direct cause of the accident. The causes were the act of a miscreant in opening the switch, the negligence of the engineer and the violation of the rules. This, as shown by the proof and conceded and urged by the plaintiff, is a departure, is not the cause of action alleged in the petition and is a failure of proof as to any of the acts of negligence averred. Brown v. Hershaw Land & Lumber Co., 65 Mo.App. 162; Hite v. Railroad, 130 Mo. 132; Gurley v. Railroad, 93 Mo. 445; Harris v. Railroad, 37 Mo. 308; Harty v. Railroad, 95 Mo. 368. (5) The only combining circumstance with the negligence of the engineer and the violation of the rules, was the act of a miscreant in opening the switch, for which the railroad company is not liable. Curtis v. Railroad, 18 N.Y. 534; Keeley v. Railroad, 47 How. Pr. 256; Harris v. Railroad, 13 F. 591; Elliott on Railroads, sec. 1636. (6) If there were any risks incident to the use of the stub switch, the location of the switch stand or the condition of the engine, they were assumed by the plaintiff, who knew of them and still remained in the defendant's employ. Lucey v. Hannibal Oil Co., 129 Mo. 32; Holloran v. Foundry Co., 133 Mo. 470; Wray v. Electric Light Co., 68 Mo.App. 330; Marshall v. Kansas City Hay Press Co., 69 Mo.App. 256; Krampe v. St. Louis Brewing Ass'n, 59 Mo.App. 277; Roddy v. Railroad, 104 Mo. 234; Price v. Railroad, 77 Mo. 508; Porter v. Railroad, 71 Mo. 76; Devitt v. Railroad, 50 Mo. 302; Thorpe v. Railroad, 89 Mo. 650; Berning v. Medart, 56 Mo.App. 443; Rutledge v. Railroad, 110 Mo. 312; Bohn v. Railroad, 106 Mo. 429. (7) The acts of the engineer, his refusal to heed the warning and notice of the fireman, the violation of the rules, the failure of the fireman to leave the engine when it almost stopped and the engineer refused to comply with the warning and the rules in respect to the danger pointed out, was contributory negligence, which will defeat any recovery in this action. Shortel v. St. Joseph, 104 Mo. 114; Keegan v. Kavanaugh, 62 Mo. 230; Stephens v. Railroad, 96 Mo. 209. (8) Upon the testimony of the plaintiff there can be no recovery.

Cravens & Cravens and Edward H. Stiles for respondent.

The uncontradicted testimony shows that the conductor had at the time the absolute control, management and direction of the train and of all persons engaged in running it. When he said go on, it was the duty of the engineer to move; when he said stop, the train must stop; and when the conductor signaled the engineer to proceed he felt bound to do so, notwithstanding the protest of plaintiff, and as plaintiff well expressed it he was "helpless." If the conductor had control of the train and of the engineer, fireman and brakeman, assisting in running it, then he was vice-principal and this has been so held in all the cases in this State. Brother v. Cartter, 52 Mo. 372; Gormly v. Vulcan, 61 Mo. 492; Whalen v. Church, 62 Mo. 326; Cook v. Railroad, 63 Mo. 397; Moore v. Railroad, 85 Mo. 588; Stephens v. Railroad, 86 Mo. 221; Hoke v. Railroad, 88 Mo. 360; Tabler v. Railroad, 93 Mo. 79; Dayharsh v. Railroad, 103 Mo. 570; Smith v. Railroad, 92 Mo. 359; Sherrin v. Railroad, 103 Mo. 383; Dixon v. Railroad, 109 Mo. 421; Hutson v. Railroad, 50 Mo.App. 305; Miller v. Railroad, 109 Mo. 350; Foster v. Railroad, 115 Mo. 165; Berry v. Railroad, 124 Mo. 223; Covey v. Railroad, 27 Mo.App. 170; Cox v. Syenite Granite Co., 39 Mo.App. 242; Banks v. Railroad, 40 Mo.App. 458; Higgins v. Railroad, 43 Mo.App. 547; Hall v. St. Joseph Water Co., 48 Mo.App. 364; Mason v. Railroad, 11 N.C. 482. (a) The following cases are cited as holding that the conductor is not a fellow servant with the other employees operating a train: Patton v. Railroad, 96 N.C. 455; Railroad v. DeBray, 71 Ga. 406; Boarwright v. Railroad, 25 S.C. 128; Coleman v. Railroad, 25 S.C. 446; Railroad v. Banks, 83 Ky. 129. (b) The conductor is not a fellow servant with a brakeman. Railroad v. Moore (Ky.), 24 Am. and Eng. R. R. Cases, 443; Railroad v. Robinson, 4 Bush (Ky.) 508; Railroad v. Cavens, 9 Bush (Ky.) 559; Railroad v. Ackerly, 8 S.W. 691; Railroad v. Collins, 87 Am. Dec. 486. (c) The general principle is thus stated: "Where the servant is, in the grade of his employment, superior to the injured servant, or where one servant is placed by the employer in a position of subordination, and subject to the orders and control of another, in such a way and to such an extent that the servant so placed in control may reasonably be regarded as representing the master, as his alter ego or viceprincipal, when such inferior servant, without fault, and while in the discharge of his duty, is injured by the negligence of the superior servant, the master is liable in damages for the injury." Beach, Contr. Neg., sec. 110; Railroad v. May, 108 Ill. 288; Lalor v. Railroad, 52 Ill. 401; Railroad v. Hawk, 121 Ill. 259; Railroad v. Collins, 2 Duv. (Ky.) 113; Railroad v. Collins, 85 Tenn. 227; Railroad v. Jones, 9 Heisk 27; Washburn v. Railroad, 3 Head (Tenn.) 638; Railroad v. Wheless, 10 Lea (Tenn.) 741; Railroad v. Bowles, 9 Heisk (Tenn.) 866; Cowles v. Railroad, 84 N.C. 309; Dobbin v. Railroad, 81 N.C. 446; Criswell v. Railroad, 30 W.Va. 798; Railroad v. LaValley, 36 Oh. St. 221; Company v. Kraft, 31 Oh. St. 287; Railroad v. Little, 19 Kan. 267; Railroad v. Lundstrom, 16 Neb. 254; Railroad v. Crockett, 19 Neb. 138; Smith v. Railroad, 15 Neb. 583; Moon v. Railroad, 78 Va. 745; Atlanta, etc. v. Speer, 69 Ga. 137; Baldwin v. Railroad, 63 Ia. 210; Railroad v. O'Brien, 21 P. 32; Shear. & Redf. on Neg., sec. 102; Wharton on Neg., sec. 229; Railroad v. Stevens, 20 Oh. 415; Madden v. Railroad, 28 W.Va. 610.

MARSHALL, J. Gantt, C. J., Sherwood and Valliant, JJ., concur. Burgess, Williams and Robinson, JJ., concur in the judgment of reversal, but do not regard the "departmental doctrine" as involved in the case. Brace, J., dissents.

OPINION

[153 Mo. 385] MARSHALL, J.

The following opinion of Division No. One is hereby adopted as the opinion of the Court in Banc.

Gantt, C. J., Sherwood and Valliant, JJ., concur. Burgess and Robinson, JJ., concur in the judgment of reversal, on the ground that the negligence of the engineer was the cause of the injury and that the engineer and fireman were [153 Mo. 386] fellow servants, but do not regard the "departmental doctrine" as involved in the case. Brace, J., dissents.

It is therefore ordered that the judgment of the circuit court be reversed.

MARSHALL, J. -- This is an action for damages for personal injuries received by plaintiff at McElhaney switch, in Newton

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county, Missouri, between the hours of 1 and 2 o'clock p. m. on July 12th, 1894. The petition charges that it was a switch station where trains stop only when signaled; that there is a side track, on the east side of the main track, long enough to hold eleven standard freight stock cars; that at each end of the side track there was a switch post placed on the east side of the main track instead of the west side, each post being about six feet and four inches from the east rail of the main track and used to work the switch; that the switch posts have targets placed on their tops, one side being painted red and the other white, so that the color indicates whether the switch is thrown to connect with the switch or with the main track -- the red signifying that the connection is with the switch and the white that it is with the main track, and that when the red appears it is dangerous for trains to attempt to pass over from the opposite direction; that on July 12th, 1894, the switch or side track was full of empty...

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