Connor v. Chicago, Rock Island & Pacific R.R. Co.

• Decision Date: 28 February 1875
• Citation: 59 Mo. 285
• Court: Missouri Supreme Court
• Parties: PHŒBE CONNOR, Defendant in Error, v. CHICAGO, ROCK ISLAND & PACIFIC R. R. CO., Plaintiff in Error.

59 Mo. 285

PHŒBE CONNOR, Defendant in Error,

v.CHICAGO, ROCK ISLAND & PACIFIC R. R. CO., Plaintiff in Error.

Supreme Court of Missouri.

February Term, 1875.

PER CURIAM

M. A. Low, for Appellant.

I. Taking section 2 of the damage act as a whole, it is plain that it was designed, not to give a right of action, where none existed before, but to fix and limit the damages recoverable by the representative of a passenger from a common carrier, for injuries resulting in death, received either through the carrier or his servants. And the liability of such carrier is rather restricted than enlarged; for the section provides that it shall be a sufficient defense to show that the defect or insufficiency was not a negligent defect or insufficiency.

II. Conceding that the word “person” in § 2, was not confined to “passengers,” still the legislature evidently did not intend to apply the law to the mutual relations of master and servant. If so, then the strange proposition follows that while the care of the master in selecting the negligent co-employee will shield him from liability, for the worst form of injuries not resulting in death, in the latter event he will be bound, notwithstanding the exercise of the last degree of caution in making the selection.

If an employee die from the effect of injuries received through the negligence or wrongful act of his employer, his representatives under § 3 can only recover what is just and right, not exceeding $5,000. So, under the decision in the Schultz case, the negligence of the co-employee is more culpable than the willful wrong of the employer.

III. It is settled beyond question, that under the general law an employer is not liable to servants for negligence of fellow servant, where the master uses proper care in employing and retaining such fellow servant. (See 43 Me., 209; 11 Ia., 421.)

IV. It may be asked why the word “person” was used in the first clause, and ““passenger” in the second. The obvious answer is, that if by “person” any other than passengers and employees were included, it would be necessary to exclude them in the second clause, which could concern only passengers and employees. And the very fact that employees were not included in the second clause, raises a very strong presumption that it was not intended to include them in the first clause, for there was a greater reason for extending the provisions of the second clause to them, than for including them in the first.

V. In the construction of a statute, the proper course is to search out and follow the true intent of the legislature, and to adopt that sense which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature. (United States vs. Winn, 3 Sum., 209.) And while an employee may be included within the words of the second section of the damage act, the conviction is irresistible that he is not within the purview of the act. It will not be presumed that the legislature, in a section enacted for the sole purpose of regulating damages, turned aside from its main purpose to create a new liability, and especially a liability that the sages of the law, for time out of mind, have held to be against public policy. (Sullivan vs. Railroad Co., 11 Ia., supra.)

C. M. Wright, with H. G. Orton, for Defendant in Error.

I. The intent of the legislature in § 2 of the damage act, was to give an employee the same remedy in case of death as was given to passengers and other persons. (Schultz vs. Pac. R. R. Co., 36 Mo., 13, and cases there cited.)

There is no obscurity in the words of the statute, and the courts should not create obscurity by construction. (31 Har., 72; Smith's Com., 822.) The decision in the Schultz case has been the settled law of this State for ten years. (Rohback vs. Pac. R. R., 43 Mo., 194; Moss vs. Pac. R. R., 49 Mo., 167.)

PER NAPTON, Judge.

This action was brought by the widow of Michael Connor to recover the statutory penalty of $5,000 damages for the death of her husband, caused by the negligence and unskillfulness of the officers, servants, agents and employees of the defendant.

The defense was that the plaintiff's husband was a brakesman at the time of the accident, and that the collision which overturned the cars, was not the result of any negligence.

The testimony of the plaintiff on the trial tended to show the following state of facts: The gravel train of the defendant, which was in charge of the plaintiff's husband, as head brakesman, was backing up a switch, to allow a regular train to pass, and while running round a curve, ran over a cow, precipitating several of the flat cars down an embankment. Connor was on the car farthest from the locomotive, or the front car, as the train was running, and was killed. There was proof to show that the train was going at the rate of twenty-five or thirty miles an hour, though the engineer, or temporary engineer, stated that there was no steam on, and it was running on a descending grade at about five or six miles an hour.

There was also proof that the engine was at the time in charge of a fireman, the engineer being in the caboose adjoining, and that he was incompetent and had been subsequently discharged for incompetency.

On motion of plaintiff's counsel, the court instructed the jury as follows: 1st. If the jury believe from the evidence that the injuries from which Michael Connor died, were received without fault or negligence on his part; and that the injuries from which he died resulted from, or were occasioned by, the negligence of employees of the defendant while running, conducting or managing the locomotive or train of cars on which said Connor was at the time of receiving said injury then they will find for plaintiff; 2nd. Negligence, as used in the foregoing instructions, consists in the doing of some act with reference to the running, managing or conducting of said locomotive or train of cars by the officers, agents, servants or employees of defendant, which a reasonable, prudent man would not do, or in the omission by them to do some act with respect thereto, which a reasonable, prudent man would not omit to do.

On behalf of defendants, the court instructed the jury as follows: 1st. It is admitted by the pleadings, that at the time of his death, Michael Connor was an employee of defendant and acting in the capacity of brakeman; 2nd. Unless the jury find from the evidence that Michael Connor died from an injury or injuries resulting from, or occasioned by the negligence or unskillfulness of some officer, agent, servant or employee of defendants whilst running, conducting or managing a locomotive, car or train of cars of defendants, then they ought to find for defendants. 3rd. Even if the jury find that at the moment of the injury, the engine driving the train on which Michael Connor was killed, was being managed and conducted by an employee of defendants, who was not a skillful engineer, still the jury ought not to find for plaintiffs on that account unless they further find from the evidence that Michael Connor died from an injury or injuries resulting from or occasioned by the unskillfulness of such employee. 7th. In this cause the presumption of law is, that the employees of defendant performed their duties skillfully and carefully, and the plaintiff cannot recover unless it is proved affirmatively that the death of Connor resulted from, or was occasioned by, negligence or unskillfulness on the part of some officer, agent, servant or employee, who at the time was running, conducting or managing the locomotive, or train of cars on which the injury occurred.”

The following instructions asked by the defendants, were refused by the court: “4th. From the simple fact of an accident and injury resulting in the death of Michael Connor, no presumption of negligence or unskillfulness can arise. On the contrary, the presumption would be, that the accident resulted from misadventure or inevitable fate, or other cause for which the defendants would not be liable. Hence, in this case the plaintiff cannot recover in the absence of affirmative and positive proof that Michael Connor died from an injury or injuries resulting from or occasioned by the negligence or unskillfulness of the officer, agent, servant or employee of defendant, who was at the time of the injury running, conducting or managing the locomotive or train of cars of defendant. 5th. If the jury believe from the evidence, that Michael Connor, as head brakeman, had the charge and control, and was running, conducting and managing the train of cars at the time of the accident and injury which resulted in his death, they will find for defendant. 6th. Plaintiff cannot recover on account of any negligence or unskillfulness of the other brakeman who was braking on the train at the time of the injury which resulted in the death of Connor.

There was a verdict and judgment for plaintiff.

From the pleadings, evidence and instructions in this case, it is clear that the case was tried on a construction of the second section of the act concerning damages, given by this court in the case of Schultz vs. Pac. R. R., 36 Mo., 13.

The section referred to, is as follows: Ҥ 2. Whenever any person shall die from an injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive or train of cars, or of any master, pilot, engineer, agent or employee, whilst running, conducting or managing any steamboat or any of the machinery thereof, or of any driver of any stage coach or other public conveyance, whilst in charge of the same as a driver, and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad or any part thereof, or in any locomotive or car, or in any steamboat or the machinery thereof, or in any stage coach or other public conveyance, the corporation, individual ...