Cousins v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1877
• Citation: 66 Mo. 572
• Court: Missouri Supreme Court
• Parties: COUSINS v. HANNIBAL & ST. JOSEPH R. R. CO., Appellant.

66 Mo. 572

COUSINS

v.HANNIBAL & ST. JOSEPH R. R. CO., Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Hannibal Court of Common Pleas.--HON. JOHN T. REDD, Judge.

The 5th section of the damage act is as follows: When any animal or animals shall be killed or injured by the cars, locomotive or other carriages used on any railroad in this State, the owner of such animal or animals may recover the value thereof in an action against the company or corporation running such railroad, without any proof of negligence, unskillfulness or misconduct on the part of the officers, servants or agents of such company; but this section shall not apply to any accident occurring on any portion of such road that may be inclosed by a lawful fence or in the crossing of any public highway. Wag. Stat., p. 520.

Thomas H. Bacon for respondent.

1. Where one of two parties must lose by the default, miscarriage or negligence of a third person, the loss must fall on the one who furnished the agencies for unlawful damage. It was the duty of appellant to hire men who would do their duty. The appliance which did the damage was a locomotive engine and tender owned and possessed by appellant. The two men who ran the engine were defendant's servants. One of them was at his post of duty, on and in charge of the engine. The other was a superior officer, having a right to be on the engine. Of all appellant's employees, not one else had any right to be on or in charge of said engine. The respondent had no voice in the appointment of these servants, no means of disciplining them by discharge or by deducting from their wages the cost incurred by their negligence. The appellant should have not put such persons in charge of such dangerous machinery. The two servants were on the engine “in the course of the appellant's employment.” Whether they were running the engine in the course of such employment is a question arising on their mental purpose. Servants cannot be allowed to hold court in their own hearts and adjudicate their master's liability. Garretzen v. Duenckel, 50 Mo., 104; Harriman v. Stowe, 57 Mo., 93; Snyder v. Hannibal, 60 Mo., 413. In the latter case the parties injured were themselves committing unlawful or negligent acts. Here the animal killed was lawfully on the railroad track. Gorman v. Pacific, 26 Mo., 441; Clark v. Hannibal, 36 Mo., 202; Hannibal v. Kenney, 41 Mo., 271; Tarwater v. Hannibal, 42 Mo., 193; McPheeters v. Hannibal, 45 Mo., 22. As to master's liability see further, Gass v. Coblens, 43 Mo. 377; Hillsdorf v. St. Louis, 45 Mo. 94; Perkins v. Missouri, 55 Mo. 201; Doss v. Missouri, 59 Mo. 27, p. 33.

2. The appellant's proposed declarations of law about its liability for acts of its servants, were aside from the case, because the answer denied that the locomotive was in charge of appellant's servants, when the evidence showed that the locomotive was in charge of its servants, and the defense attempted, was on the ground that the servants had no business to be running the locomotive.

James Carr and H. B. Leach for appellant.

It was no part of Wilbur's duty to operate or run engines, or to direct their operation or running after they left the round house; and the yard master only had charge of engines, after the regular engineers and firemen had run the engines in off the main track upon one of the yard tracks. The position of neither authorized or required him to run engines on the main track. No officer of the appellant who had any authority to run, or direct or control the running of engines, authorized either the foreman of the round house or the yard master to run the engine which struck the mule in controversy, out on the main track. The former acted as engineer and the latter as fireman, entirely of their free will and accord, without leave or license from the appellant. They were trespassers in doing what they did, just as much as an entire stranger would have been, if he had run the engine out without leave or license. The act was entirely unauthorized, and being so, the respondent is not entitled to recover. Flower v. Penn. R. R. Co.,69 Penn. St. 210; Welden v. Harlem R. R. Co., 5 Bosw. 576; Mitchell v. Crassweller, 13 C. B. 237; Aycrigg v. N. Y. & E. R. R. Co., 1 Vroom 460; Haack v. Fearing, 35 How. Pr. 459; Shearm. & Redf. on Neg., § 63; Garretzen v. Duenckel, 50 Mo. 111; Howe v. Newmarch, 12 Allen 49; Foster v. Essex Bank, 17 Mass. 479; Douglass v. Stephens, 18 Mo. 362.

HOUGH, J.

This was an action under the 5th section of the damage act to recover the value of a mule killed by an engine of the defendant within the corporate limits of the city of Hannibal, in August, 1873. The views of this court in relation to the liability of railroad companies for animals killed by their engines and cars, within the corporate limits of towns and cities, were definitely expressed in the case of Edwards v. The Han. & St. Jo. R. R., and Elliott v. Same, decided at the present term, and need not be repeated here.

The principal question in this case is whether, under the circumstances disclosed by the evidence, the defendant is liable for the acts of the servant who managed the engine by which the animal in question was killed. This servant was introduced as a witness, and his testimony, which is uncontradicted, is as follows: “I was in defendant's employ at the time plaintiff's stock was killed; I was superintendent of the round-house; my duty was to see that the engines and tenders were kept in good running order and properly housed and taken care of; I had been acting in this capacity six or seven years; it was no part of my duty to run an engine on the road; was at the time of the injury in the employ of the company as yard-master of the round-house yard; there are a number of tracks in the round-house yard connecting with the main track and leading to the different engine stalls in the round-house. When a train arrives from the west, the engine and tender is run by the regular engineer from the main track on to one of yard tracks and left standing on the yard track, abandoned by the regular engineer and fireman; it was then the duty of the yard-master of the round-house yard to take charge of it and run it into its proper stall in the round-house, where I took charge of it. When an engine was needed for a train going west, it was the duty of the yard-master to run it from its stall to its position on one of the yard tracks, and it was in his charge until the regular engineer and fireman took charge of it to run in on one of the main tracks. About 3 or 4 o'clock of the morning of the accident, one of my neighbors, in the employ of the company,...