85 Mo. 588 (Mo. 1885), Moore v. Wabash, St. L. & P. Ry. Co.

Citation:85 Mo. 588
Opinion Judge:HENRY, C. J.
Attorney:W. H. Blodgett and George B. Burnett for appellant. Waters & Wyne for respondent.
Court:Supreme Court of Missouri

Page 588

85 Mo. 588 (Mo. 1885)




Supreme Court of Missouri.

April Term, 1885

Appeal from Livingston Circuit Court. --HON. JAMES M. DAVIS, Judge.


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 F. 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....

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