79 S.W. 664 (Mo. 1904), Fogarty v. St. Louis Transfer Company

Citation:79 S.W. 664, 180 Mo. 490
Opinion Judge:MARSHALL, J.
Party Name:FOGARTY v. ST. LOUIS TRANSFER COMPANY, Appellant
Attorney:Randolph Laughlin for appellant. Johnson, Houts, Marlatt & Hawes for respondent.
Case Date:March 17, 1904
Court:Supreme Court of Missouri

Page 664

79 S.W. 664 (Mo. 1904)

180 Mo. 490

FOGARTY

v.

ST. LOUIS TRANSFER COMPANY, Appellant

Supreme Court of Missouri, First Division

March 17, 1904

Appeal from Franklin Circuit Court. -- Hon. Jno. W. McElhinney, Judge.

Affirmed.

Randolph Laughlin for appellant.

The court erred in refusing defendant's instruction in the nature of a demurrer to the plaintiff's evidence: Because such evidence showed that the injury was caused by the act of a fellow-servant. (a) It is the act, and not the rank, of Edwards which determines whether he and Fogarty were fellow-servants at the time of the injury. Wood on Master and Servant, p. 860; Harper v. Railroad, 47 Mo. 580; Lee v. Detroit Bridge and Iron Works, 62 Mo. 565; Marshall v. Schricker, 63 Mo. 311; Moore v. Railroad, 85 Mo. 596; Schaub v. Railroad, 106 Mo. 87; Miller v. Railroad, 109 Mo. 356; Card v. Eddy, 129 Mo. 514; Grattis v. Railroad, 153 Mo. 394; Hawk v. McLeod Lumber Co., 166 Mo. 129; Bane v. Irwin, 172 Mo. 317; Garland v. Railroad, 85 Mo.App. 583; Railroad v. Baugh, 149 U.S. 387; Railroad v. Keegan, 160 U.S. 267; Reed v. Stockmeyer, 74 F. 192; Railroad v. Charless, 162 U.S. 359; Deep Mining Co. v. Fitzgerald, 21 Col. 542; Railroad v. May, 108 Ill. 288; Gall v. Beckstein, 173 Ill. 187; Barnicle v. Connor, 110 Iowa 240; Andre v. Elevator Co., 117 Mich. 562; O'Neill v. Railroad, 80 Minn. 30; Ross v. Walker, 139 Pa. St. 42; Crispin v. Babbitt, 81 N.Y. 510; Hanna v. Granger, 18 R. I. 511; Di Marcho v. Iron Foundry, 18 R. I. 517; Frawley v. Sheldon, 20 R. I. 258; Morgridge v. Providence Tel. Co., 20 R. I. 386; Allen v. Goodwin, 92 Tenn. 385; Gann v. Railroad, 101 Tenn. 380; Fertilizer Co. v. Travis, 102 Tenn. 16; Sayward v. Carlson, 1 Wash. 29; Klochinski v. Shores Lumber Co., 93 Wis. 425; Dwyer v. American Express Co., 82 Wis. 312; Ell v. Railroad, 1 N. Dak. 336; Davis v. Railroad, 55 Vt. 84; Dougherty v. Log Driving Co., 76 Me. 143; Yates v. McCullough, 69 Md. 370. (b) The act of "jerking and whirling about the lead horses of plaintiff's team" was the act of a fellow-servant. Hanna v. Granger, 18 R. I. 507; Di Marcho v. Builder's Iron Foundry, 18 R. I. 516; Frawley v. Sheldon, 20 R. I. 258; Gann v. Railroad, 101 Tenn. 382; Railroad v. Charless, 162 U.S. 364; Barnicle v. Connor, 110 Iowa 240; Crispin v. Babbitt, 81 N.Y. 516; Reed v. Stockmeyer, 74 F. 186; Gall v. Beckstein, 173 Ill. 187; Meeker v. Remington & Son Co., 65 N.Y.S. 1116; Taylor v. Railroad, 121 Ind. 124; Deep Mining Co. v. Fitzgerald, 21 Col. 533; Drinkout v. Eagle Machine Works, 90 Ind. 423; Salem Stone & Lime Co. v. Chastin, 9 Ind.App. 453; Railroad v. Torrey, 58 Ark. 217; Railroad v. May, 108 Ill. 288; Clay v. Railroad, 56 Ill.App. 235; Railroad v. Massig, 50 Ill.App. 666; Railroad v. Handman, 13 Lea 423; Allen v. Goodwin, 92 Tenn. 385; Sontar v. Elec. Co., 68 Minn. 18; Sayward v. Carlson, 1 Wash. 29; Holtz v. Railroad, 69 Minn. 524; Nat. Fertilizer Co. v. Travis, 102 Tenn. 16; Railroad v. Schwabbe, 1 Tex. Civ. App. 573; Quinn v. N. J. Lighterage Co., 23 F. 363; The Miami, 93 F. 218, 87 F. 757; Dwyer v. American Express Co., 55 Wis. 453, 82 Wis. 312; Lee v. Detroit Bridge & Iron Works, 62 Mo. 565; Marshall v. Schricker, 63 Mo. 311; Moore v. Railroad, 85 Mo. 596; Schaub v. Railroad, 106 Mo. 88; Grattis v. Railroad, 153 Mo. 394; Hawk v. McLeod Lumber Co., 166 Mo. 129; Bane v. Irwin, 172 Mo. 317. (c) Neither the order of Edwards to Fogarty to get up on the wagon, nor the method employed to back the wagon, nor the asserted failure of Edwards to give a warning, are material: (1) Because they were not pleaded as grounds for a recovery. Feeback v. Railroad, 167 Mo. 206; Raming v. Railroad, 157 Mo. 477; Hogan v. Railroad, 150 Mo. 36; Chitty v. Railroad, 148 Mo. 64; Turner v. McCook, 77 Mo.App. 196. (2) Because the order was shown by Fogarty himself to have been a proper one, and the notice was shown by him to have been given. (3) Because neither order, nor method, nor notice, nor want of notice, but only the physical act of handling the team, was the proximate cause of the injury. Reed v. Stockmeyer, 74 F. 186; Barnicle v. Connor, 110 Ia. 240; Gall v. Beckstein, 173 Ill. 187; Gavigan v. Railroad, 110 Mich. 71; Deep Mining & Drainage Co. v. Fitzgerald, 21 Col. 533; Crispin v. Babbitt, 81 N.Y. 516. (d) The proximate cause of an injury is the last breach of duty which precedes it. Such breach may be an act of commission or of omission, a breach of the master's duty or of the servant's duty, and the liability will be determined accordingly. Bane v. Irwin, 172 Mo. 317; Illinois Steel Co. v. Schymanowski, 162 Ill. 447; Railroad v. May, 108 Ill. 288; Gall v. Beckstein, 173 Ill. 187; Reed v. Stockmeyer, 74 F. 186; Deep Mining & Drainage Co. v. Fitzgerald, 21 Col. 533; Barnicle v. Connor, 110 Iowa 240; Gavigan v. Railroad, 110 Mich. 71; Adams v. Pennsylvania Company, 48 Ohio St. 623. (e) The master's duty to give warning to his servants is limited in scope to secret, hidden or extraordinary hazards, not incident to the usual course of the employment, the increased danger of which is known to the master, and which the servant either does not know or does not have an opportunity of knowing equal to the master's. Such duty is further limited in character to a general warning of the danger of the thing itself, as distinguished from the possible negligent manner of its performance. The law does not require the master to give notice of every hazard that might occur in the conduct of his work, extending through all its details, nor to have present at all times and at all details, a vice principal with a warning voice and a parental care for each servant engaged in the work. O'Neil v. Railroad, 80 Minn. 30; Reed v. Stockmeyer, 74 F. 189; Hussey v. Coger, 112 N.Y. 614; Gavigan v. Railroad, 110 Mich. 73.

Johnson, Houts, Marlatt & Hawes for respondent.

(1) Plaintiff was injured through a negligent act of the foreman of defendant, which arose out of and was the direct result of the exercise of the authority conferred upon the foreman by the defendant; and, under both Missouri and Illinois decisions and the correct rule, the defendant is liable. Miller v. Railroad, 109 Mo. 356; Parker v. Railroad, 109 Mo. 394; Gormly v. Iron Works, 61 Mo. 492; Dayharsh v. Railroad, 103 Mo. 570; Russ v. Railroad, 112 Mo. 53; Hutson v. Railroad, 50 Mo.App. 300; Schroeder v. Railroad, 108 Mo. 322; Donnelly v. Mining Co., 77 S.W. 131; Grattis v. Railroad, 153 Mo. 392; Bane v. Irwin, 172 Mo. 317; Railroad v. May, 108 Ill. 288; Railroad v. Moranda, 93 Ill. 302; Fanter v. Clark, 15 Ill.App. 475; Coal Co. v. Wombacher, 134 Ill. 57; Brick Co. v. Sobkowiak, 148 Ill. 580; Steel Co. v. Schymanowski, 162 Ill. 447; Railroad v. Dwyer, 162 Ill. 482; Bridge Co. v. Walker, 170 Ill. 550; Offutt v. Columbian Exposition, 175 Ill. 472; Railroad v. Skola, 183 Ill. 454; Norton Bros. v. Nadebok, 190 Ill. 595; Graver Tank Works v. O'Donnell, 191 Ill. 236; Railroad v. Atwell, 198 Ill. 200; Chicago Hair Co. v. Mueller, 203 Ill. 558; Fraser v. Schroeder, 163 Ill. 459; Rolling Mill Co. v. Johnson, 114 Ill. 57; 1 Shearman & Redfield, Negligence, par. 226; 12 Am. and Eng. Ency. Law (2 Ed.), 926; Mining Company v. Davis, 90 Tenn. 711. (2) The question whether the negligent act was the result of the exercise of authority conferred upon the foreman, and was performed in the exercise of that authority, was a question of fact for the jury. Chicago Hair Co. v. Mueller, 203 Ill. 563; Railroad v. Dwyer, 162 Ill. 482; Bridge Co. v. Walker, 170 Ill. 560; Offutt v. Exposition Co., 175 Ill. 473; Norton v. Nadebok, 190 Ill. 599. (3) The question of contributory negligence of the plaintiff was a question for the jury, under instructions, and their finding is conclusive. Offutt v. Columbian Exposition, 175 Ill. 479; Weber v. Railroad, 100 Mo. 194; Church v. Railroad, 119 Mo. 214.

OPINION

Page 665

[180 Mo. 495] MARSHALL, J.

This is an action for twenty thousand dollars damages, for personal injuries received by the plaintiff, on April 2, 1898, in East St. Louis, Illinois. The petition alleges that the plaintiff was in the employ of the defendant, and at the time of the accident was engaged in the work of the master; that one George Edwards was the defendant's foreman and manager in East St. Louis, Illinois; that plaintiff was engaged in the work of the defendant in driving a wagon, loaded with heavy iron girders, and in the attempt to back the wagon into the alley between tracks numbered 20 and 21, of the Big Four railroad; that [180 Mo. 496] while plaintiff was so engaged, "said Edwards, while acting as defendant's said foreman and manager, ordered the lead horses attached, and violently, carelessly and negligently and without notice or warning plaintiff and after having been advised by plaintiff that said load could not be backed, grasped, jerked and wheeled about the lead horses of plaintiff's team, with such violence as to break the tongue of said wagon, and violently disturb the equilibrium of the wagon and its load, breaking the chain that bound the girders, overturning and breaking the wagon, throwing plaintiff upon the ground and causing one of said girders to fall upon him." After all the evidence was in, the plaintiff by leave amended his second amended petition so as to strike out all the specific acts of negligence charged except one, and so as to make the allegations of the petition, following the portion above quoted, read as follows: "And plaintiff states that by reason of the negligence and carelessness of defendant's foreman and manager in carelessly and negligently jerking and whirling the lead horses of the plaintiff's team as aforesaid, said wagon was upset as aforesaid, plaintiff was thrown to the ground and one of the girders thrown upon him, crushing his left leg and painfully injuring his right leg and hip joints."

The answer is a...

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