Stephens v. Hannibal & St. Joseph R.R. Co.

Decision Date30 April 1885
PartiesSTEPHENS v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
CourtMissouri Supreme Court

Appeal from Clay Circuit Court.--HON. G. W. DUNN, Judge.

REVERSED.

Geo. W. Easley for appellant.

(1) The objection to the introduction of any evidence under the first count should have been sustained. The plaintiff and the train men were fellow servants, and the plaintiff could not recover for the negligence of his fellow servants. Rohback v. Pacific Ry. Co., 43 Mo. 187; McGowan v. St. Louis, etc., Railroad, 61 Mo. 528; Blessing v. St. Louis, K. C., etc., Railroad, 77 Mo. 410. Not only the evidence, but the pleadings must negative the presumption that all engaged in the same service are fellow servants. Summerbays v. Railroad Co., 2 Col. 484; S. C., 20 Am. Ry. Rep. 362; Dow v. Ry. Co., 8 Kan. 642; S. C., 5 Am. Ry. Rep. 401. (2) The second count did not state facts sufficient to constitute a cause of action, and this question was raised by the motion in arrest. Plaintiff and the foreman, Rice, were fellow servants, and without an allegation of negligence in the hiring or retention of Rice, no cause of action was stated. McDermott v. H. & St. Jo. Ry. Co., 73 Mo. 516; Wood's Master and Servant, 900; Fort v. Pacific Railroad, 2 Dillon, 259; Smith's Master and Servant (3 Eng. Ed.) 216. (3) The first instruction given for the plaintiff was erroneous. Rohback v. Railroad, 43 Mo. 187. The second instruction was likewise erroneous. Wood on Master and Servant, 900; Smith's Master and Servant (3 Eng. Ed.) 216. The instruction ignores the defence of contributory negligence. Gibson v. Jackson Horse Ry. Co., 76 Mo. 282. It enlarges the issues made by the pleadings. Waldhier v. Railroad Co., 71 Mo. 514. (4) Defendant's first, second and third instructions should have been given. The plaintiff could not recover without showing all those instructions required, and, further, that the negligent character of the engineer or Rice was unknown to plaintiff. Wood on Master and Servant, p. 791, sec. 414; Devitt v. Railroad, 50 Mo. 302. (5) Defendant's fourth instruction should have been given. The jury may have found negligence from the single act of Rice, which is not the law. Whar. on Neg., sec. 238; Lee v. Bridge Works, 62 Mo. 565. Defendant's fifth instruction should have been given. If plaintiff stood still and let the train run over him he could not recover. Defendant's seventh instruction was clearly right. The foreman and plaintiff both being negligent, plaintiff could not recover. Schabb v. Wheel Co., 56 Mo. 173. (6) The third instruction given for the plaintiff and the general finding on the counts are erroneous, and the motion in arrest should have been sustained for that reason. Mooney v. Kennett, 19 Mo. 551; Clark's Adm'r v. H. & St. Jo. Ry. Co., 36 Mo. 215; Pitts v. Fugate, 41 Mo. 405; State ex rel. Collins v. Dulle et al., 45 Mo. 269. The two counts were for separate and distinct causes of action. But if there is one entire cause of action, and one good count in the declaration, a general verdict and general assessment of damages will answer. Clemens v. Collins, 14 Mo. 604; Brownell v. Pacific Railroad, 47 Mo. 243; Bliss on Code Pl., sec. 113; Pomeroy on Remedies, p. 489, sec. 455.

Henry Smith for respondent.

(1) Plaintiff was entitled to recover on the first count of the petition. He was not a fellow servant of the train men. He was engaged in repairing the track, they in running the cars. It was defendant's duty to see that plaintiff, while at its work in one department, was not injured by its chosen servants in another department. Kieley v. Belcher, etc., 2 Cent. L. J. 705; Baird v. Pettit,70 Pa. St. 482; Lewis v. Ry., 59 Mo. 495; Hall v. Ry., 74 Mo. 298; Long v. Ry., 65 Mo. 225; Chicago Ry. v. Moranda, 98 Ill. 302. The injury was the result of carelessly running and operating the train, at least, that was for the jury to determine from the evidence. Schultz v. Ry., 44 Wis. 638; Haines v. Ry., 3 Cold. 222. Plaintiff was not guilty of contributory negligence. Cottrel v. Ry., 47 Wis. 634. (2) Plaintiff was entitled to recover on second count of the petition. He was not a fellow servant of foreman Rice. The latter was representing the company as to the management and control of the work. Shearman & Redf. on Negligence, sec. 102; Wharton on Negligence, sec. 222; Wood on Master and Servant, 886; Gormly v. Vulcan Iron Works, 61 Mo. 492; Brothers v. Cartter, 52 Mo. 372; Lewis v. Iron Mt. Ry. Co., 59 Mo. 495; Marshall v. Shricker, 63 Mo. 308; McGowan v. Iron Mt. Railroad, 61 Mo. 528-532; Cook v. H. & St. Jo. Ry., 63 Mo. 397; Dowling v. Gerard B. Allen & Co., 74 Mo. 13, 18, 19, 20. (3) Plaintiff was subject to extra hazard and greater risk than belonged to his employment in obeying Rice's order to remove the obstructing stones. Rice, in giving the order, represented the company. Dowling v. Allen & Co., 74 Mo. 13; Keegan v. Kavanaugh, 62 Mo. 230; Railway Co. v. Fost, 17 Wall. 553, 557; Chicago & N. Ry. Co. v. Bayfield, 37 Mich. 205; Lalar v. Ry. Co., 52 Ill. 401; Ry. Co. v. Collins, 2 Duv. 114. (4) It was not contributory negligence in plaintiff to obey Rice's order. Keegan v. Kavanaugh, 62 Mo. 230. The fact that an employe is directed by his superior in charge to do an act at a time and under circumstances that a person would reasonably apprehend danger, would not justify his disobedence of such orders, and obedience is not negligence. Frandsen v. Ry. Co., 36 Iowa, 372; Patterson v. Ry. Co., 76 Pa. St. 389; LeClair v. Ry. Co., 20 Minn. 9. If the master, or another servant, standing toward the injured servant in the relation of vice-principal, orders the servant into a place of danger, and he obeys and is injured, the law will not charge him with contributory negligence. Miller v. Ry Co., 12 Fed. Rep. 600; Miller v. Ry. Co., 17 Fed. Rep. 67.

BLACK, J.

This was a suit for personal damages sustained by the plaintiff while in the employ of the defendant, as track repairer. The first count of the petition attributes the injuries to the negligent manner of running a passenger train, and the second to the negligence of Rice, the foreman. Plaintiff was one of a gang of six laborers under Rice, their foreman. At the time of the accident, the men were at a curve in the road ballasting the track, which they did by breaking large stones distributed along the track for that purpose.

The plaintiff's account of the matter is as follows: “When we saw the train coming, Rice said, ‘clear the track.’ We all got off the track. When I said to Rice: ‘Jack, there are two stones on the track,’ he said, ‘it is time you were getting them off.’ I heard the train some time before I saw it. When I first saw the train it was about one hundred and fifty yards away. I can't say how far it was away when I first heard it. The train was coming about twice as fast as usual. When the train came in sight, Rice said, ‘clear the track.’ After we got off the track, I said to Rice: ‘there are two stones on the track,’ and he said, ‘it is time you were getting them off.’ It took me all the time to get those rocks off between the time the order was given and I was hurt. The engine hit the tamping bar which I had been using, but which I did not then have in my hand, and that struck me and turned around and the engine struck my left arm, crushing it. The tamping bar struck my right arm, turning me around and throwing me against the engine. I was standing clear of the track, with my right side to the approaching train. My back was not to it.”

The two stones referred to were some six inches in diameter and eighteen inches long. The evidence further shows that the train was behind time a few minutes, and was running faster than usual to make up time, and that the track at that place was new and in good repair. Rice says when he first heard the train he thought it was on another road, but he soon knew, and before he saw it, that it was on their track, and he ordered the men to get off. He also says, when he made the remark to Stephens, his attention was called to some engineers who were on the track with a hand car, and that he ran towards them waving his hat for them to get off, and did not see Stephens again, until just as he was struck; that he hallooed, but Stephens did not hear him.

1. The court, at the request of the plaintiff, gave an intruction to the effect that if the injuries complained of were caused by the negligence of the employes on the train, in running it at a high and dangerous rate of speed, and without fault on the part of the plaintiff, then the finding should be for the plaintiff. There was no evidence in the case on which to base this instruction. The defendant had a right to run its trains in excess of the usual rate of speed to make up lost time. Of course, in doing this, it became the duty of the employes in charge of the train to use greater vigilance and care to prevent accidents on the track. But there is no evidence in the case showing, or tending to show, that the engineer did, or by the exercise of care, could have discovered the plaintiff in time to have checked or stopped the train. The section men themselves could not see the train until it was well near to them. The verdict is general. It does not show upon which count the finding was based. Both counts seek to recover for the same injury, it is true, but they are based upon entirely distinct grounds, and we cannot say the finding was not upon the erroneous instruction. This branch of the case should have been entirely withdrawn from the jury.

2. It follows from what has been said, that the second instruction asked by the defendant was properly refused, and the second, given by the court of its own motion, should not have been given. There is no charge of negligence on the part of defendant in employing Rice or in retaining him in its service. Nor is there any evidence tending, in the least, to show that Rice was an incompetent person to discharge the duties of...

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