88 Mo. 360 (Mo. 1885), Hoke v. St. Louis, K. & N. Ry. Co.

Citation:88 Mo. 360
Opinion Judge:RAY, J.
Party Name:HOKE, Appellant, v. THE ST. LOUIS, KEOKUK & NORTHERN RAILWAY COMPANY.
Attorney:N. C. Dryden and A. R. Taylor for appellant. Fagg & Hatch and T. F. McDearmon for respondent.
Court:Supreme Court of Missouri
 
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Page 360

88 Mo. 360 (Mo. 1885)

HOKE, Appellant,

v.

THE ST. LOUIS, KEOKUK & NORTHERN RAILWAY COMPANY.

Supreme Court of Missouri.

October Term, 1885

Appeal from St. Louis Court of Appeals.

REVERSED.

N. C. Dryden and A. R. Taylor for appellant.

(1) The facts in evidence sustain the verdict. The plaintiff's injuries were directly caused by the negligence of John Tracy whilst engaged in directing and controlling the business of the defendant, or a department thereof, and the defendant is, therefore, liable. Brothers v. Carter, 52 Mo. 372; Gormly v. Vulcan Co., 61 Mo. 492; McGowan v. Railroad, 61 Mo. 532; Dowling v. Allen, 74 Mo. 13; Malone v. Hathaway, 64 N.Y. 9. (2) Nor does it make any difference as to defendant's liability that the negligence of the agent that occasioned the injury was the personal conduct of the agent. Even if the master (or the vice-principal) at the time of committing the act of negligence be working with the injured servant, still they are not fellow servants, and the master is liable. Ashwith v. Stanwix, 3 El. & El. 701; Gormly v. Vulcan Works, 61 Mo. 495; McGowan v. Railroad, 61 Mo. 528; Shearman & Redf. on Neg., sec. 102. (3) The petition is good, it sets forth that the injury was caused by the negligence of defendant's agent. (4) The verdict should not be disturbed as being excessive. Frick v. Railroad, 75 Mo. 592.

Fagg & Hatch and T. F. McDearmon for respondent.

(1) The petition did not state a cause of action, because it shows that John Tracy and Michael Fitzgerald, whose negligence, it is averred, occasioned the injury to appellant, and appellant were at the time all employes of respondent, engaged in a common employment of loading a wrecked car on to a wrecking train, and makes only the general averment, that said Tracy was one of the controlling officers of defendant's said railroad, to-wit. the road master, without any statement of facts showing that the duties and authority of such road master were such as to make him a vice-principal or alter ego of the appellant. 2 Thompson on Neg., 1026, 1028 and 1050; Wood on M. & S., 809; McGowan v. Railroad, 61 Mo. 528; Scott v. Robards, 67 Mo. 289; Harper v. Railroad, 47 Mo. 567; Waldhier v. Railroad, 71 Mo. 514; Lawler v. Railroad, 62 Me. 463; Leduke v. Railroad, 4 Mo.App. 485. (2) The court should have sustained defendant's demurrer to the evidence. Nolan v. Shickle, 3 Mo.App. 300; Smith v. Harkness, 3 Mo.App. 585; Lindsay v. Mfg. Co., 4 Mo.App. 570. (3) The court committed error in giving plaintiff's first instruction. Cooper v. Ord, 60 Mo. 420; Summer v. McCray, 60 Mo. 493; Wells v. Halpin, 59 Mo. 92; Brothers v. Carter, 52 Mo. 372. (4) Plaintiff's instruction number three was wrong, for it makes the liability of defendant rest entirely upon the negligence of a " superior" co-employe, without defining the authority of such employe, or how or by whom the defendant could be guilty of negligence. Marshall v. Schricker, 63 Mo. 372; Brothers v. Carter, 52 Mo. 372; McGowan v. Railroad, 61 Mo. 528; Harper v. Railroad, 47 Mo. 567. (5) Instruction number nine, given by the court on its own motion, was erroneous. Goetz v. Railroad, 50 Mo. 473; Henschen v. O'Bannon, 56 Mo. 289. (6) Instructions number five, six, seven and eight, offered by respondent, should have been given, for they correctly declared the law, viz.: that before liability can be fixed on defendant, the testimony must prove that at the time of the negligence complained of, the servant whose negligence caused the injury must have been in discharge of some absolute or implied duty which the master owed to the servant, and the injury complained of must have resulted from the negligent discharge of such duty. Daubert v. Pickel et al., 4 Mo.App. 590; Murphy v. Railroad, 4 Mo.App. 565; Rains v. Railroad, 71 Mo. 164; Marshall v. Schricker, 63 Mo. 308; Gormley v. Vulcan Iron Works, 61 Mo. 492; Crispin v. Babbitt, 81 N.Y. 520; McCasker v. Railroad, 84 N.Y. 77; Lee v. Detroit Bridge Co., 62 Mo. 565; McGowan v. Railroad, 61 Mo. 528; Gibson v. Railroad, 46 Mo. 163; Rohback v. Railroad, 43 Mo. 187; McDermott v. Railroad, 30 Mo. 115; Lawler v. Railroad, 62 Me. 463; Blake v. Railroad, 70 Me. 60.

RAY, J.

This was an action for damages for an injury alleged to have been done to plaintiff by defendant and its employes while engaged in loading a wrecked car upon a wrecking train of defendant. The action was commenced in the Lincoln circuit court, and afterwards transferred to that of St. Charles, where there was a verdict and judgment for plaintiff for ten thousand dollars, from which the defendant appealed to the St. Louis court of appeals, where the judgment of the circuit court was reversed and the cause remanded, from which the plaintiff appealed to this...

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