8 S.W. 367 (Mo. 1888), Ischer v. St. Louis Bridge Co.

Citation:8 S.W. 367, 95 Mo. 261
Opinion Judge:Norton, C. J.
Party Name:Ischer v. St. Louis Bridge Company et al., Appellants
Attorney:S. M. Breckinridge and M.F. Watts for appellants. A. R. Taylor for respondent.
Judge Panel:Norton, C. J. Judge Sherwood concurring only in the result.
Case Date:May 21, 1888
Court:Supreme Court of Missouri
 
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Page 367

8 S.W. 367 (Mo. 1888)

95 Mo. 261

Ischer

v.

St. Louis Bridge Company et al., Appellants

Supreme Court of Missouri

May 21, 1888

Appeal from St. Louis City Circuit Court. -- Hon. Amos M. Thayer, Judge.

Reversed and remanded.

S. M. Breckinridge and M.F. Watts for appellants.

(1) The court erred in overruling the demurrer to the evidence. There was a fatal variance between the allegations and the proof. Neilon v. Railroad, 85 Mo. 599. (2) The court erred in refusing to give the first instruction asked by defendant. Daubert v. Pickle, 4 Mo.App. 591; Hamilton v. Railroad, 4 Mo.App. 564; Weger v. Railroad, 55 Pa. 460; Peterson v. Coal Co., 58 Ind. 673; Coal Co. v. James, 86 Pa. 432; Flynn v. Salem, 134 Mass. 351; Brown v. Railroad, 27 Minn. 162; Abend v. Railroad, 111 Ill. 202; 2 Thomp. on Neg. 1023; Mathews v. Case, 61 Wis. 491; Huffman v. Railroad, 78 Mo. 50. (3) The court erred in refusing to give the second instruction asked by defendant. A master is not liable to a servant for the negligent acts of an incompetent foreman unless the master knew, or, by exercise of reasonable care, might have known, of the foreman's incompetency. Huffman v. Railroad, 78 Mo. 50; Kersey v. Railroad, 79 Mo. 362; Murphy v. Railroad, 71 Mo. 202; Hilts v. Railroad, 55 Mich. 437; McDermott v. Railroad, 87 Mo. 285. (4) The court erred in giving the first instruction given by it of its own motion. Railroad v. Robinson, 106 Ill. 142; Thompson's Charging the Jury, sec. 62, and cases there cited.

A. R. Taylor for respondent.

(1) The petition charges that Schow, whose negligence caused the injury to plaintiff, was the agent, i. e., the vice-principal of the defendant. This is distinctly alleged and is the essential charge. The fact that the petition also alleges the incompetency of Schow, and defendant's negligence in appointing him, does not affect the materiality of the first charge. McDermott v. Railroad, 87 Mo. 302. The petition was drawn to meet either view, and as, at the time, the cases of Moore v. Railroad, 85 Mo. 588; Stephens v. Railroad, 86 Mo. 229; Dowling v. Allen, 88 Mo. 203; and Hoke v. Railroad, 88 Mo. 360, had not been decided, and as the question of who were fellow-servants, and who agents or vice-principals, was in some uncertainty, the plaintiff was entitled to rely upon either ground that the facts warranted. If Schow was defendant's alter ego, it is liable for his negligence whilst performing the powers and duties of the master. Authorities supra. (2) The causa causans of the injury was the conduct of Schow, and the verdict is supported by the evidence. Lee v. Woolsey, 109 Pa. St. 124.

Norton, C. J. Judge Sherwood concurring only in the result.

OPINION

[95 Mo. 263] Norton, C. J.

This is an action for damages for personal injuries...

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