Bien v. St. Louis Transit Co.

• Decision Date: 29 November 1904
• Court: Missouri Court of Appeals
• Parties: BIEN v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

83 S.W. 986

108 Mo. App. 399

BIEN v. ST. LOUIS TRANSIT CO.^*

St. Louis Court of Appeals. Missouri.

November 29, 1904.

MASTER AND SERVANT—INJURIES TO SERVANT— STREET RAILROADS — BARN FOREMAN — VICE PRINCIPALS—FELLOW SERVANTS—CONTRIBUTORY NEGLIGENCE.

1. A street railway barn foreman, whose duty it was to give orders with reference to the running of cars, with authority to lay off men for infraction of rules, directed plaintiff to take out a new car, which plaintiff stopped just outside the car shed, at a sandhouse, to get sand for his trip. While plaintiff was getting sand, the foreman got on the standing car and started it forward suddenly without signal, crushing plaintiff against the side of the sand bin. Held, that the foreman was plaintiff's vice principal, and that his act in momentarily moving the car, instead of ordering another to do so, did not render his negligence in so doing that of plaintiff's fellow servant.

2. Where a street railway motorman was injured by the negligence of his foreman in moving the motorman's car while he was procuring sand, whether the motorman was guilty of contributory negligence in not carrying with him his controller handle, which he had removed from the socket, as required by a rule of the company, instead of leaving it lying on the controller, where it was easily obtainable by the foreman, was for the jury.

Appeal from St. Louis Circuit Court; W. B. Douglas, Judge.

Action by Jacob Bien against St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, Crawley & Jamison, and John T. Gose, for appellant. Ernest E. Wood, for respondent.

GOODE, J.

Plaintiff was badly hurt by being run against by one of the defendant's trolley cars. The accident occurred the morning of November 28, 1903. Plaintiff was one of the defendant's motormen, and on that morning was ordered by a foreman named Dring to take a car out of the car sheds at Delmar and De Balaviere avenues. Those sheds are the division headquarters for five or six lines of street cars operated by the transit company—among them, the Olive street, the Delmar avenue, and the Page avenue lines. Several hundred cars go out of the sheds daily on the different lines. The particular car which Bien was ordered to take out that morning was new, and much larger than those theretofore used by the defendant company. In obedience to the direction of Dring, Bien started out of the car sheds with the car, but stopped, after passing outside, a car's length or so from a structure called the "sand shed," to get some sand for use on the trip, as was his duty. It appears that Dring had ordered him to stop when he did in order to put a signboard on the car. At any rate, he put the signboard on, and then proceeded to get sand from the bin to put into the sand boxes of the car. The car moved out of the car sheds on the south track, which ran within three inches of the northeast corner of the sand bin, thence curving to the south, and passing the eastern corner of the bin only a foot or less from it. Bien had taken one bucket of sand to the car and had stooped down outside the bin, and between it and the track, to fill another bucket, when Dring got on the standing car, and, in order to get it out of the way of another car which was in the rear, undertook to run it out of the shed himself. He started the car forward suddenly, without giving any warning, and crushed Bien against the side of the sand bin. Dring knew at the time that Bien was getting sand, and, if he had looked, could have seen him 30 or 40 feet in advance of the car.

The main defense in the case is that Dring was a fellow servant of Bien. This is contested by respondent's counsel, who insists that he was a foreman or vice principal. The regular division superintendent about the sheds was one Myers, and it is the contention of the transit company that Dring had no authority over the men working about those yards, except to tell the motormen and conductors what cars to take out, and when to take them. Another defense is that Bien, in obedience to a rule of the company, should have taken with him, when he went for the sand, his motor handle, by which the motion of the car is controlled; that, if this had been done, the car could not have been started, and therefore Bien's own negligence contributed to the accident. On this point it is proper to state some testimony: The chutes through which sand was let from the sand shed into the buckets were opened by the use of the ordinary motor-handle with which motormen operate their cars; that is to say, the device for taking out sand was constructed in such a manner that it could be opened by this motor handle. When Bien went for sand on this occasion, he took with him the motor handle of the new car, thinking he could open a chute with it; but that motor handle was constructed differently from those on other cars, and did not fit the chutes. So Bien carried it back to the car it belonged to, and laid it on the motor box in the front of the car, then got an ordinary motor handle, and was getting sand with it when hurt. There was testimony that the men about those sheds and yards obeyed all the orders given by Dring in the absence of Myers. Unquestionably negligence on the part of Dring was conclusively shown, and the defendant is liable unless exonerated by Dring's standing in the relation of fellow servant to the respondent.

Two principal questions are pressed for solution on the appeal: First, as stated above, whether Bien and Dring were fellow servants, or the latter a vice principal; second, if he was a vice principal in the performance of his proper duty, whether he became a fellow servant of Bien in undertaking to run the latter's car out of the way of the car in the rear, for the reason that the act of operating the car was not one of the duties intrusted to him by the transit company. Dring's chief, if not his sole, duty was to regulate the trips of the various crews that went out from the Delmar and De Balaviere sheds. He assigned crews to the different cars, and directed them as to the times of their runs. The members of the crews who testified said they received their orders from him, but in most instances limited the statement by saying they meant orders in regard to taking out cars. Dring had control of them to that extent, at least, and laid them off from work occasionally for infractions of the company's rules or disobedience of orders. What other work besides regulating trips, and assigning crews to make them, was performed about that focus of the transit company's business, does not appear in evidence; but it does fairly appear that Dring's authority was principally, if not exclusively, over the car operatives.

Judicial efforts to find a criterion of general application in determining when one employé so far represents the employer that he is a vice principal, and the employer responsible for his negligence resulting in injury to a co-employé, have yielded one of the conspicuous failures of latter-day jurisprudence. The confusion in the cases appears to have arisen from biases in favor of or against the doctrine of respondeat superior. Many judges have inclined to restrict the operation of that doctrine by enlarging the scope of the fellow-servant rule, which is an exception to it, and narrowing the scope of the exception to the latter rule based on the status of vice principalship. Other judges have shown the opposite tendency. Both doctrines—respondeat superior and fellow servant—are measures of expediency, and cannot be reasoned into harmony with each other, or perhaps with ideal justice. The law is never free from rules imposing extraordinary responsibilities on particular classes, as witness common carriers, innkeepers, guardians, trustees, and the like. The importance of compelling such parties to do all in their power to prevent mischief or loss leads to holding them responsible often for mischief or loss which it was out of their power to prevent. It is obvious that rules of this kind are assailable as productive of injustice, and, to temper their rigor, exceptions and qualifications are introduced, and occasionally these are inconsistent in principle with the main rule. The doctrines of respondeat superior and co-service are examples of this. One may hold the opinion that the rule requiring masters to answer for the default of servants is accorded too great a sphere at present, constituting, as administered, an unreasonable extension of the principles of the law of agency, without thinking that it can be restricted logically by withholding it as a remedy from fellow servants or any particular group of persons. The incongruity of this exception, and its apparent injustice in the present state of industrial affairs, when so much separate supervision is necessary, have resulted in broadening the conception of vice principalship, and making masters answerable for injuries to employés by the negligence of other employés who formerly would have been classed as fellow servants, but are now regarded as representatives of the masters. This doctrine of vice principalship has entrenched greatly on the defense of co-service, but the principles the courts have enunciated for ascertaining in concrete instances whether a negligent employé stood in the relation of vice principal or fellow servant to another employé are hopelessly discordant; and it is best, in disposing of the question in a given case, to rely exclusively on a precedent, if an apposite and authoritative one can be found. Counsel in the present appeal have briefed and argued the subject very well, both on principle and authority, and appellant's counsel insist we ought to decide it on theoretical grounds. But fortunately we are relieved of that difficult task. There have been decisions by the appellate courts of this state in cases where the facts were like those before us, and which therefore...