61 Mo. 528 (Mo. 1876), McGowan v. The St. Louis & I. M. R. Co.

Citation:61 Mo. 528
Opinion Judge:HOUGH, Judge.
Party Name:JOHN MCGOWAN, Plaintiff in Error, v. THE ST. LOUIS AND IRON MOUNTAIN RAILROAD COMPANY, Defendant in Error.
Attorney:Cline, Jamison & Day, for Plaintiff in Error. Thoroughman & Warren, for Defendant in Error.
Court:Supreme Court of Missouri
 
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Page 528

61 Mo. 528 (Mo. 1876)

JOHN MCGOWAN, Plaintiff in Error,

v.

THE ST. LOUIS AND IRON MOUNTAIN RAILROAD COMPANY, Defendant in Error.

Supreme Court of Missouri.

January Term, 1876

Who are fellow servants of the same master is not a question of fact exclusively, nor a question of law solely. It depends for solution upon both law and fact, and, when the necessary facts for determining the question are not in dispute, the question is simply one of law.

Error to St. Louis Circuit Court.

Cline, Jamison & Day, for Plaintiff in Error.

The conductor was the agent chosen by defendant to manage and control the work, and plaintiff was acting in a subordinate capacity. He, therefore, had a right to rely on his representation. If he did, he is entitled to recover; and, whether he did or not, was a question for the jury.

Thoroughman & Warren, for Defendant in Error.

Plaintiff knew of the condition of the rope, and took the risk. ( Devitt vs. Pac. R. R., 50 Mo. 305.)

Nothing shows negligence on the part of the company in the employment of servants.

See generally, Gibson vs. Pacific R. R., 46 Mo. 169.

OPINION

HOUGH, Judge.

This was an action to recover damages for personal injuries received by the plaintiff while engaged as a laborer in loading bridge timbers on defendant's cars, on the line of its ??oad. The petition alleged that plaintiff was injured by the carelessness and wrongful acts of the defendant, its agents and employees, and by reason of the defects and rotten condition of a certain rope furnished by the defendant, to draw the timbers from the ground upon the cars, which gave way while in use, whereby the timber being raised by it, fell upon plaintiff's left foot and ankle, crushing it; and that defendant knew that said rope was defective and insufficient, and plaintiff was ignorant thereof.

The defendant admitted the injury, denied the other allegations of the petition, and averred that the plaintiff was fully cognizant of the character and condition of said rope, prior to and at the time of said injury, which averment was denied by the plaintiff.

It appeared at the trial that the train had an engineer, conductor, and twelve laborers. They had been employed for several days in loading timbers on the cars at different points on the line of the road, and were so engaged at the time plaintiff was injured.

The timbers, in being loaded upon the cars, were forced from the ground by the side of the track...

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