Moore v. Wabash, St. Louis & Pacific Ry. Co.
| Citation | 85 Mo. 588 |
| Court | United States State Supreme Court of Missouri |
| Decision Date | 30 April 1885 |
| Parties | MOORE v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant. |
Appeal from Livingston Circuit Court.--HON. JAMES M. DAVIS, Judge.
AFFIRMED.
W. H. Blodgett and George B. Burnett for appellant.
(1) The court erred in overruling defendant's demurrer to plaintiff's evidence. Kestler, the foreman, was a fellow servant of the plaintiff, and the defendant was not liable for an injury occurring through his negligence, or on account of a failure on his part to keep his alleged promise to protect plaintiff from injury. Harper v. Railroad, 47 Mo. 576; McGowan v. St. L. & I. M. Ry. Co., 61 Mo. 528; Lee v. Detroit Bridge & Iron Works, 62 Mo. 565; Marshall v. Schricker, 63 Mo. 308; Blessing v. St. L., K. C. & N. Ry. Co., 77 Mo. 410; Hoke v. St. L., K. & N. W. Ry. Co., 11 Mo. Ct. App. 574; Crispin v. Babbitt, 81 N. Y. 516; McCosker v. Long Island Ry. Co., 84 N. Y. 77; Slater v. Jewett, 85 N. Y. 61; Hoth v. Peters et al., 55 Wis. 405; Weger v. P. Ry. Co., 55 Pa. St. 460; Keystone Bridge Co. v. Newberry, 96 Pa. St. 246; Johnson v. Boston, 118 Mass. 114; O'Connor v. Roberts, 120 Mass. 227; Parker v. St. P., M. & M. Ry. Co. (Minn.) 19 Northwestern Reporter, 349; Brown v. Winona & St. Peters Ry. Co., 27 Minn. 162; s. c., 38 Am. 285; Mathews v. Case (Wisconsin) Central Law Journal, Dec. 12, 1884, p. 478. (2) The court erred in giving the first and second instructions on behalf of the plaintiff. ( a) Because the instructions erroneously declared that upon the facts enumerated, Kestler and plaintiff were not fellow servants. See authorities supra. ( b) Because the instructions ignore the evidence as to the rules of defendant, in respect to putting out red flags for the protection of employes, while repairing cars on a track other than the repair track. Chappell v. Allen, 38 Mo. 214; Ellis v. McPike, 50 Mo. 574; Raysdon v. Trumbo, 52 Mo. 35; Iron Mountain Bank v. Murdock, 62 Mo. 70; Sullivan v. H. & St. J. Ry. Co., not yet reported; Thompson on Charging the Jury, sect. 71, p. 99. (3) The instructions asked by the defendant correctly declared the law applicable to the evidence, and should have been given.
Waters & Wyne for respondent.
The only questions in this case are: (1) Was Kestler a fellow servant with plaintiff? (2) Was the defendant guilty of negligence in requiring plaintiff to repair the car on its side track, and in failing to protect him while at work? (3) Was plaintiff guilty of contributory negligence? (4) Was any error committed by the court below in giving plaintiff's first and second instructions and in refusing defendant's second, third, fourth, fifth, sixth, seventh, eighth, and ninth? (1) Kestler was defendant's foreman of car repairs at Stanberry, with power to employ such car repairers as he needed, at such wages as he arranged to pay, and to discharge them at pleasure; and with authority to superintend, control and direct them in their work. He was not a fellew servant with plaintiff. Granville v. Ry. Co., 10 Fed. Rep. 711; Murphy v. Smith, 19 C. B. (N. S.) 361; Brickner v. Ry. Co., 49 N. Y. 672; Moore's Adm'r v. Ry. Co., 17 Am. & Eng. Ry. Cases, 531; Woods' Master and Servant, secs. 438, 439, 452, 453; Shear. & Redf. on Neg., secs. 102, 103, 104; Mann v. Oriental Print Works, 11 R. I. 184; Mullan v. Ship Co., 78 Pa. St. 25; Brabbits v. Ry. Co., 38 Wis. 289; Malone v. Hathaway, 64 N. Y. 5; Whar. on Neg., sec. 232; Sullivan v. Mfg. Co., 113 Mass. 398; Ford v. Ry. Co., 110 Mass. 240; Crispen v. Babbitt, 81 N. Y. 516: Redf. on Rys. (5 Ed.) p. 838, sec. 7; Ry. Co. v. Ross, 112 U. S. 377; Ry. Co. v. May's Adm'x, 108 Ill. 288; Ryan v. Bagaley, 50 Mich. 179; Chapman v. Ry. Co., 55 N. Y. 579; Ry. Co. v. Little, 19 Kas. 627; Ry. Co. v. Decker, 82 Pa. St. 119; Smith v. Ry. Co., 17 Am. & Eng. Ry. Cases, 561. (2) The defendant was guilty of negligence in requiring plaintiff to repair its car on a side track and in failing to protect him while at work. Flynn v. Ry. Co., 78 Mo. 202; Mo. Furnace Co. v. Abend, 107 Ill. 44; Moore's Adm'r v. Ry. Co., supra; Thompson v. Ry. Co., 1 Pac. R. 255; Whalen v. Centenary Church, 62 Mo. 326; Gibson v. Ry. Co., 46 Mo. 162; Sullivan v. Mfg. Co., supra; Snow v. Ry. Co., 8 Allen 441; Wood's M. & S., secs. 351, 439, 448, 450; Whar. on Neg., secs. 235, 219, 220; Fransden v. Ry. Co., 36 Iowa 372; Shear. & Redf. on Neg., secs. 93-96; Dowling v. G. B. Allen Co., 74 Mo. 14; Porter v. Ry. Co., 71 Mo. 66; Flynn v. Ry. Co., supra; Conroy v. Iron Works, 62 Mo. 35; Hough v. Ry. Co., 100 U. S. 213; Wedgewood v. Ry. Co., 41 Wis. 478; Ry. Co. v. McLallen, 84 Ill. 116; Cooley on Torts, 561, 562; Ry. Co. v. Fox, 3 Pac. R. 320; Lubke v. Ry. Co., 59 Wis. 127; Ry. Co. v. Levalley, 36 O. St. 221; Bessex v. Ry. Co., 45 Wis. 477. (3) Was plaintiff guilty of contributory negligence? The answer charges that plaintiff made the repairs in question without setting red flags on each side of the place where he was at work, as required by a rule of defendant, and was injured thereby. The foreman ordered plaintiff to make the repairs on the side track and promised to protect him, and obedience on the part of plaintiff is not negligence. Brothers v. Cartter et al., 52 Mo. 374; Keegan v. Kavanaugh, 62 Mo. 232; Flynn v. Ry. Co., 78 Mo. 205; Ry. Co. v. Bayfield, 37 Mich. 210; McKinne v. Ry. Co., 5 Pac. R. 482. He had a right to assume that defendant would be mindful of his safety. Bradley v. Ry. Co., 62 N. Y. 99; Mfg. Co. v. Morrisey, 40 O. St. 148; Hawley v. Ry. Co., 82 N. Y. 370; Cook v. Ry. Co., 63 Mo. 397; 1 Add. on Torts, p. 605, note; Mo. Furnace Co. v. Abend, 107 Ill. 44; Greene v. Ry. Co., 31 Minn. 248; Huddleston v. L. M. S., 106 Mass. 282; Miller v. Ry. Co., 12 Fed. R. 600; 2 Thomp. on Neg. 974, 975, 976. Plaintiff swears he never heard of any rule concerning the use of flags, nor of their existence or use. (4) The court did not err in giving plaintiff's first and second instructions. Brothers v. Cartter et al., 52 Mo. 374; Hicks v. Ry. Co., 68 Mo. 329; Whar. on Neg., sec. 235; Bradley v. Ry. Co., 62 N. Y. 99. (5) Defendant's second, third, fourth, fifth, sixth, seventh, eighth and ninth instructions present the converse of the propositions contained in plaintiff's instructions, as given by the court, and were properly refused.
This is an action to recover damages for an injury alleged by plaintiff to have been sustained by him while in the employ of defendant as a car repairer. The cause of action stated in the petition is, that at Stanberry, a station on defendant's road, defendant kept a car shop, and had in its employ a foreman of car repairs, who had sole charge and control of hands employed to repair cars. That on the nineteenth day of October, 1881, and while plaintiff was so employed as a car repairer, the said foreman ordered and directed the plaintiff to repair the draw-head of one of the freight cars of defendant company, then standing with other freight cars upon a side track of defendant, at said town of Stanberry, and while said cars were detached from any engine; that said foreman of car repairs then and there promised plaintiff that he would protect him while so employed in repairing said draw-head, and would prevent and keep away any train or engine from coming in or entering upon the said side track, and plaintiff, in obedience to the order and direction, and relying on the promise of said foreman, undertook to repair the draw-head of said freight car, and while engaged thereat, and being upon the side track of said defendant, and between two of the freight cars of said company, an engine of defendant came in and upon said side track, and against the cars standing thereon, and the car upon which the plaintiff was at work was driven back against the freight cars standing in the rear thereof, and plaintiff's right arm was caught and crushed between said cars; that the said foreman failed and neglected to protect plaintiff while at work on said draw-head, and failed and neglected to prevent and keep said engine from coming upon said side track, and utterly failed and neglected to notify or inform the person in charge of said engine that plaintiff was at work upon the draw-head of said car, upon said side track.
The answer denied every allegation in the petition, and for a further defence alleged, that at and long prior to the date of plaintiff's injury, the defendant had adopted a rule, requiring all car repairers, when engaged in repairing cars, to set out red flags on each side of the place where they were at work, as signals of warning to approaching trains, and that Kestler, the foreman, and the defendant and O'Connor, who was at that time engaged with plaintiff in repairing the car in question, had notice of the rule, but that defendant and Kestler on that occasion neglected to observe it, and that the injury was attributable to his own and the negligence of O'Connor, his fellow servant. The replication was a denial of the new matter pleaded in the answer. On the trial plaintiff had a judgment for $8,450.00, from which defendant has appealed.
It is virtually conceded by plaintiff that no red flags were set out, as required by the rule of the company, but there was evidence tending to prove that plaintiff had no knowledge that such a rule had been adopted. There was evidence, however, tending to prove the facts alleged in plaintiff's petition, and the question in the cause which presents the most difficulty, is whether plaintiff and the foreman of car repairs were fellow servants. If they were not, and the foreman is to be regarded as the alter ego of the company in the transaction which is the basis of this action, plaintiff was absolved from the duty of observing said rule by the promise of the foreman to use proper precautions for his safety. Appellant's counsel say that the rule by which to determine who are fellow servants is well stated by Mr. Wood in his work on Master and Servant, at page 860, as follows: “Whenever...
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