60 Mo. 160 (Mo. 1875), Porter v. The Hannibal & St. Joseph Railroad Co.
|Citation:||60 Mo. 160|
|Opinion Judge:||NAPTON, Judge.|
|Party Name:||WILLIAM H. PORTER, Respondent, v. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.|
|Attorney:||Oliver, and Carr, with Leach, for Appellant. Allen H. Vories, for Respondent.|
|Court:||Supreme Court of Missouri|
Appeal from Buchanan Circuit Court.
STATEMENT OF CASE.
The facts charged in the petition were that plaintiff was a young man of nineteen, enployed as a brakesman by defendant, and that in consequence of the unevenness of a switch side track, he was thrown from a car and run over, and his leg was crushed.
I. If a servant is injured by the negligence or fault of his fellow servant, though the one injured is subject to the orders of the one in fault, no action can be maintained against the master. ( McDermott vs. Pac. R. R. Co., 30 Mo. 116, 117; Farwell vs. Boston & W. B., 4 Metc. 49; Redf. Railw., § 131, et seq., 4th ed., p. 517, and notes 1 & 2; Gibson v Pac. R. R. Co., 46 Mo. 167.) So, if in this case the yard master carelessly or negligently ordered respondent to brake on the track where he was injured, appellant is not liable. (1 Whart. Negl. §§ 229, 230.)
II. Where an employee is injured in consequence of defective machinery, or other appliances of the road, he cannot recover against his employer upon the ground of negligence in respect to such defects, and if he knew of the existence of the same, or could have known thereof by the exercise of ordinary care or prudence, it was a question proper to be submitted to the jury. (Whart. Negl., §§ 214, 217.)
I. The defendant was bound to provide good, safe and properly constructed tracks and machinery, adapted to the carrying on of its business, and to use all reasonable care and ordinary precaution for the safety of plaintiff--and the degree of care required is greater when life and limb are endangered. (See Cayzer vs. Taylor, 10 Gray 274; Loomis vs. Terry, 17 Wend. 496; Castle vs. Duryea, 32 Barb. 480; Morgan vs. Cox, 22 Mo. 373; Ryan vs. Fowler, 24 N.Y. 420; McDermott vs. Pac. R. R. Co., 30 Mo. 115; Gorman vs. Pac. R. R. Co., 26 Mo. 441; Gibson vs. Pac. R. R. Co., 46 Mo. 163; Kennedy vs. N. M. R. R. Co., 36 Mo. 361; Col. & Ind. Cent. R. R. Co. vs. Arnold's Adm'rs, 31 Ind. 174-180.)
II. It was not the duty of plaintiff, nor in his power to know, the defects in the track, " by the exercise of ordinary care on his part." (See Snow vs. Housatonic R...
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