Hall v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1881
• Parties: HALL v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

74 Mo. 298

HALL

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Osage Circuit Court.--HON. A. J. SEAY, Judge.

AFFIRMED.

Thomas J. Portis & E. A. Andrews for appellant.

Plaintiff relied for recovery on the case of Lewis v. R. R. Co., 59 Mo. 495. The decision in that case, when made, was in conflict with the decisions of this and other states, and ought now to be overruled or so modified as to harmonize with the legal principles governing the universal law of master and servant. The plaintiff and the trackmen are fellow-servants, and by this contract the former assumed all the ordinary risks incident to their co-employment by a common master. Cooley on Torts, p. 545; Strange v. McCormick, 1 Phil. 156; Pyne v. R. R. Co., 54 Ia. 223; s. c., 37 Am. Rep. 198; Mich. Cen. R. R. Co. v. Austin, 40 Mich. 247; Waller v. S. E. R'y Co., 2 Hurl. & Colt. 102; Lehigh Valley Co. v. Jones, 86 Pa. St. 432; McAndrews v. Burns, 39 N. J. L. 117; Quincy Min. Co. v. Kilts, 42 Mich. 34; Holden v. R. R. Co., 129 Mass. 268; s. c., 37 Am. Rep. 343; Wilson v. Merry, L. R., 1 H. L. Sc. & Div. App. 326; Walker v. R. R. Co., 128 Mass. 8 If the section foreman was not a fellow-servant, still the court erred in not distinguishing between his acts as a co-laborer, and his acts as and for his master. Albro v. Canal Co., 6 Cush. (Mass.) 75; Ford v. R. R. Co., 110 Mass. 240; Warner v. R. R. Co., 39 N. Y. 468; Brickner v. R. R. Co., 49 N. Y. 672; Wood's Law of Master and Servant, 888. The petition was fatally defective in not alleging any knowledge of the defect complained of on the part of the defendant, or that by the exercise of reasonable care he might have known of it. If such an allegation were not a substantial element of recovery, then the court submitted to the jury an issue not made by the pleadings. 72 Mo. 414. The law does not define the duties of a section foreman, and, therefore, instruction three should not have been given. 67 Mo. 122; 86 Pa. St. 432.Belch & Silver and R. S. Ryors for respondent, cited 59 Mo. 495; 71 Mo. 71, 77, 78; 65 Mo. 225; McGowan v. R. R. Co., 61 Mo. 532; 1 Dillon 312; 51 Mo. 454; Buesching v. Gaslight Co., 73 Mo. 230, 231.

HENRY, J.

This action was instituted by plaintiff for damages for an injury received by him while in the servies of defendant as a switchman, in consequence, he alleges, of the negligence and carelessness of defendant in permitting a loose iron rail to lie upon the path plaintiff had to pursue in the discharge of his duty as switchman, and by reason of which, while so employed, he was thrown down an embankment and injured. The accident occurred at Chamois at night. At that station there are six or seven tracks, and in switching cars from one track to another the switchman has to get off and adjust the switch. On this occasion when he stepped from the caboose to signal the engineer, his foot was caught under the iron rail lying loose in his path near the track, and he was thrown down the embankment and seriously injured. It was the duty of the section foreman, as testified by the foreman, to keep the tracks in repair and to remove rails and other obstructions which might be on or so near the track as to be dangerous. On the day of the night in question, the section foreman had taken up some rails in the yard, and the reasonable deduction from the evidence is, that the rail which caused the injury was one of those rails.

After the plaintiff closed his evidence, which substantially established the foregoing facts, the defendant asked the court to declare that, on the pleadings and evidence, the plaintiff could not recover, which the court refused; and for plaintiff instructed the jury as follows:

1. If the jury are satisfied from the evidence in this case, that the plaintiff was, at the time hereinafter mentioned, switchman on the railroad of defendant, and in its employ as such; that he was in the discharge of his duty as such switchman, and was on a caboose cutting or separating same from another caboose; that it became necessary for him to get off the caboose; that in doing so he exercised care, and without negligence on his part, his foot caught on a loose railroad rail, which caused him to fall, and he was thereby injured; that said rail was on the path where the plaintiff in the discharge of his duty would get off the caboose, and that increased the risk of injury to plaintiff; and that said rail was put on the track by the section foreman, or those employed under him, or was allowed to remain there, and that the defendant knew of its existence or might by the exercise of reasonable care and diligence have known thereof; and they further find that the plaintiff received injuries in consequence of such loose rail lying and remaining on said path, put there as aforesaid, or defendant knew or might have known of its existence; and the plaintiff, at the time he received such injury, was exercising ordinary care and prudence, and did not know that the rail was on said path, then the defendant is liable for such injury.

3. In this case the section foreman's duty was to keep the track in repair and see that the track was not obstructed, and in this he represented the company.

1. MASTER AND SERVANT: vice-principal: railroad.

The principle ground relied upon for a reversal of the judgment which plaintiff recovered, is, that a switchman and section foreman are fellow-servants. Adjudications of the courts of other states of the Union sustaining the appellant's position are cited by counsel, and, whatever our opinion might be, if it were a question of the first impression in this court, the contrary was held in Lewis v. R. R. Co., 59 Mo. 495, and the doctrine of that case has ever since been adhered to by this court, and we are not inclined to depart from what must, therefore, be now...