59 Mo. 495 (Mo. 1875), Lewis v. St. Louis & I.M.R. Co.

Citation:59 Mo. 495
Opinion Judge:WAGNER, Judge.
Party Name:M. D. LEWIS, Public Adm'r in charge of estate of EDWIN S. MANN, Appellant, v. ST. LOUIS & IRON MOUNTAIN RAILROAD CO., Respondent.
Attorney:Everett Pattison, for Appellant. Dryden & Dryden, for Respondent. For the defendant, the court declared the law to be:
Court:Supreme Court of Missouri
 
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Page 495

59 Mo. 495 (Mo. 1875)

M. D. LEWIS, Public Adm'r in charge of estate of EDWIN S. MANN, Appellant,

v.

ST. LOUIS & IRON MOUNTAIN RAILROAD CO., Respondent.

Supreme Court of Missouri.

March Term, 1875

Appeal from St. Louis Circuit Court.

Everett Pattison, for Appellant.

I. The cause does not abate on account of the death of appellant after appeal taken, judgment having been in his favor below.

a. When the plaintiff recovered judgment in the court below, the cause of action became merged in the judgment. ( Kimbrough v. Mitchell, 1 Head 539; 2 Bouv. Inst., 149; see also 15 Conn. 524.)

b. The death of the plaintiff after final judgment does not abate the suit; execution may issue. (Wil. Ex., *766.) And if a plaintiff in error dies after errors assigned, the writ does not abate. (Wil. Ex., *1710; Carroll vs. Bowie, 7 Gill, [Md.], 34.)

c. And the appeal taken by the defendant to the general term of the Circuit Court, did not vacate the judgment; it only suspended it. The cases that hold that a valid appeal vacates the judgment, apply only to cases where there is to be a trial de novo in the appellate court, as in appeals in chancery cases, OF appeals from courts of inferior jurisdiction. ( Rogers vs. Hatch, 8 Nev. 40; Curtis vs. Beardsley, 15 Conn. 518.)

We call especial attention to the wording of the statute on the subject of abatement. The statute providing for the revival of suits before judgment, contains the provision that the suit shall not abate " if the cause of action survive or continue." (Wagn. Stat., p. 1049, § 1.) But these words are not found in the section providing for the revival of suits in the Supreme Court. (Wagn. Stat., 1067, § 26.) Sec. 30 applies only to the course of proceeding-- the method of bringing in the parties.

d. The reversal of the judgment by the General Term did not absolutely vacate the judgment, plaintiff having taken an appeal to the Supreme Court from the judgment of reversal. (Wil. Ex., *762; see also Marguard vs. Rieter, 30 Mo. 248.) And a reversal of the General Term, by the Supreme Court, would restore the judgment of the court below. ( Perry vs. Alford, 5 Mo. 502; Strouse vs. Drennan, 41 Mo. 294.)

II. Respondent cannot complain of the refusal of its instructions.

Those given declared the law very favorably for the defendant below.

Indeed we think that the instructions which told the jury that, if the negligence of a co-employee caused the accident, defendant was not liable, were erroneous. (See Cayzer vs. Taylor, 10 Gray 274; Harper vs. Ind. & St. L. R. Co., 47 Mo. 579; Brothers vs. Carter, 52 Mo. 375.)

A corporation is liable to an employee for negligence or want of proper care in respect to such acts and duties as it is required to perform and discharge as master or principal, without regard to the rank or title of the agent intrusted with their performance. As to such acts the agent occupies the place of the corporation, and the latter should be deemed present, and consequently liable for the manner in which they are performed. ( Flike vs. Boston and Albany Railroad Company, 53 N.Y. 549; and see cases there cited.) Wright, although employed by the company, nevertheless, in respect to his duties as section foreman, stood in the place of the company and his neglect was that of the company.

All, from the highest officer to the lowest laborer, are in one sense fellow servants, and as a corporation can act only through its officers and employees, it follows, under those instructions, that it may mangle and kill its employees ad libitum, and there can be no liability. We do not think that this court will recognize any such principle. (See in this connection, Laning vs. N.Y. C. R. R., 49 N.Y. 529; C & N. W. R. R. Co. vs. Sweet, 45 Ill. 197; C. & N. W. R. R. Co. vs. Jackson, 55 Ill. 492; Harper vs. Ind. & St. L. R. R. Co., 47 Mo. 579.)

III. The first instruction given for plaintiff is proper. ( Gibson vs. Pac. R. R. Co., 46 Mo. 163; Snow vs. Housatonic R. R. Co., 8 Allen 441; Devitt vs. Pac. R. R., 50 Mo. 302.)

Dryden & Dryden, for Respondent.

This case is not that of failure to furnish safe machinery and apparatus, as in Gibson vs. Pac. R. R. Co. (46 Mo. 173.) Here respondent did its duty in constructing road bed, etc., and the accident was due to the digging of a hole two or three days previous by a stranger and trespasser.

Respondent employed, as a section foreman, one Wright, whose duty it was to keep the road in good repair at the " ore switch." It is not claimed that he was incompetent or the company negligent in employing or retaining him; nor that the existence of the defect was brought to the knowledge of any controlling officer of the road. Under such state of facts respondent is not liable. ( Hard vs. Vt. Cent. R. R., 32 Vt. 473; Warner vs. Erie R. R., 39 N.Y. 468; Wilson vs. Merry, 1 Scotch D. D. App. [H. L.], 328.)

A broader doctrine than this would force the company to guaranty not merely the competency but the fidelity of co-employees. Wright was not incompetent, but merely negligent. Plaintiff, when he entered the company's service, took all risks arising from such negligence. ( McDermott vs. Pac. R. R. Co., 30 Mo. 115; Rohback vs. Pac. R. R. Co., 43 Mo. 187; Brothers vs. Cartter, 52 Mo. 372; Farwell vs. Boston & Worcester R. R. Co., 4 Metc. 49; Torrent vs. Webb, 18 C. B. [68 E. O. L.], 795; Priestly vs. Fowler, 3 M. & W., 1; Wilson vs. Merry, 1 Scotch & D. App. [H. L.] [1868], 328; Mobile & Ohio R. Co. vs. Thomas, 42 Ala. 672.) In Snow vs. Housatonic R. R. Co. (8 Allen 441,) relied on by appellant, the defect in the track was known for months, and the questions were raised whether the track repairer was competent, and whether he was a fellow servant of Snow--the road being in the possession of two different companies.

Instruction No. 2 asked by defendant should have been given. (See Snow vs. Housatonic R. R., supra; Brothers vs. Cartter, supra; Warner vs. Erie R. R., supra; Hard vs...

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