Stephens v. Hannibal & St. Joseph Railroad Co.
| Decision Date | 12 November 1888 |
| Citation | 9 S.W. 589,96 Mo. 207 |
| Parties | Stephens v. The Hannibal & St. Joseph Railroad Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. G. W. Dunn, Judge.
Reversed and remanded.
Strong & Mosman and Huston & Parrish for appellant.
(1) The demurrer to the evidence should have been sustained. The risk to plaintiff was an obvious one. Keegan v Cavanaugh, 62 Mo. 232; McDermott v. Railroad, 87 Mo. 285; Flynn v. Railroad, 78 Mo. 195; Porter v. Railroad, 71 Mo. 67; Dowling v Allen, 88 Mo. 293. (2) All the testimony shows plaintiff was guilty of such negligence as to preclude his recovery. Bell v. Railroad, 72 Mo. 59; S. C. 86 Mo. 600; McDermott v. Railroad, 87 Mo. 285; Dale v Railroad, 63 Mo. 455. (3) The proof does not sustain the cause of action charged in the petition. (4) The plaintiff was not injured in the course of his employment in obedience to the master's order, but in attempting to do something which he was not ordered to do, and which he was doing on his own judgment and by means chosen by himself. Sullivan v. India Co., 113 Mass. 396; Felch v. Allen, 98 Mass. 572. (5) The court erred in giving the first instruction on behalf of the respondent. The servant is not held to obey every order of the master. The limit fixed by law to required obedience is, was obedience to the order so perceptibly, obviously dangerous that a man (not the plaintiff) of ordinary prudence, caution and firmness would decline obedience. The standard is the action of a man of ordinary prudence and caution. McDermott v. Railroad, 87 Mo. 285; Keegan v. Cavanaugh, 62 Mo. 232; Flynn v. Railroad, 78 Mo. 195. (6) The court erred in refusing to give defendant's fourth instruction. Porter v. Railroad, 71 Mo. 67; Keegan v. Cavanagh, 62 Mo. 232; Dale v. Railroad, 63 Mo. 455; Wood on M. & S. sec. 328. (7) The court erred in permitting plaintiff to prove other injuries than those charged in the petition.
Henry Smith for respondent.
(1) The case was retried in conformity to the opinion delivered when the case was here before. 86 Mo. 229. (2) There was no contributory negligence on plaintiff's part to preclude his recovery. It is said by many courts that "the fact that an employe is directed by his superior in charge to do an act at a time and under such circumstances as that a person would reasonably apprehend danger, would not justify his disobedience of such orders, and obedience is not negligence." Dowling v. Allen & Co., 74 Mo. 13; Keegan v. Kavanaugh, 62 Mo. 230; Railroad v. Fost, 17 Wall. 553, 557; Railroad v. Bayfield, 37 Mich. 205; Lalar v. Railroad, 52 Ill. 401; Railroad v. Collins, 2 Duv. 114; Frannsen v. Railroad, 36 Iowa 372; Patterson v. Railroad, 76 Pa. St. 389; LeClair v. Railroad, 20 Minn. 9; Miller v. Railroad, 12 F. 600; Miller v. Railroad, 17 F. 67; Smith v. Railroad, 61 Mo. 591; Cottrel v. Railroad, 47 Wis. 634.
OPINION
This case has been here before and is reported in 86 Mo. 221. It is now freed from any question of negligence on the part of those in charge of the train, and stands on the alleged negligence of Rice and the alleged contributory negligence of the plaintiff. Now, as on the former appeal, it appears that plaintiff and five others, under John Rice as their foreman, were engaged in raising a part of defendant's track. For that purpose rocks were distributed along the track by the construction train. Plaintiff and the other laborers put them on the track, broke them with sledge-hammers, and forced the pieces under the ties with tamping-bars. The evidence shows that a west-bound passenger train was behind time. It was heard before it was seen, but, when first heard, the men could not tell whether it was on the defendant's road or a train on another road. The train came at a faster rate of speed than usual; and when within one hundred or one hundred and fifty yards of them, Rice told the men to get off the track and they did so. It was then discovered that there were two stones on the track, about six by twelve inches as plaintiff says, or the size of a dinner-bucket as stated by Rice. Plaintiff says: Says he first saw the train when Rice said "clear the track," and that he had just got off when he saw the stones and called Rice's attention to them, and that the train was then about one hundred yards away. Rice says he, at the same time, saw a hand-car coming towards them, and he started forward to signal those in charge of it to get off the track; that, after going a few steps, Stephens was hurt; that the train was in sight when he told Stephens to get the rocks off; that in his opinion it was necessary to remove the stones to avoid danger, and that it was his duty to flag the train when there were obstructions on the track, but he did not flag it that morning. A number of plaintiff's ribs and his collar bone were broken, and the left arm was so shattered that it had to be amputated.
As Rice had charge of the gang of men and they were subject to his orders only, there can be no doubt but he was the agent of the defendant, and not a fellow-servant with the plaintiff, in respect of the orders given. His negligence was the negligence of the defendant. Enough was said on this subject when the case was here before.
The court refused an instruction in the nature of a demurrer to the evidence, and at the request of the plaintiff gave an instruction, the material portion of which is in these words: "And if the jury further find that plaintiff was one of such workmen so employed on defendant's track under Rice as such foreman, and that Rice recklessly, carelessly and negligently ordered plaintiff to remove the stones from the track, and that to obey the order at the time and under the circumstances was extra-hazardous, but did not plainly imperil plaintiff's life or limb, and that plaintiff in obeying the order was injured because thereof, and without fault on the part of the plaintiff, then the jury will find for the plaintiff, and assess his damages at such sum, not exceeding fifteen thousand dollars, as will compensate him for the injuries sustained."
To remove the stones from the track under the circumstances disclosed was surely accompanied with more danger than was ordinarily incident to the business in which the plaintiff was engaged; and the evidence tends to show negligence on the part of Rice in directing the removal of the stones at the time he gave the order. We do not understand these propositions to be controverted on this appeal. The chief contention is, that the evidence shows that the danger was open and obvious to the plaintiff, that he ought to have disobeyed the order, and for these reasons the demurrer to the evidence should have been sustained. Generally a servant cannot recover for those injuries resulting from causes seen and known by him. But, even when there is no order to do a given act, there are some modifications of the general rule. Thus it is held in many cases, where the servant knowingly incurs the risk of defective machinery, still if not so defective as to threaten immediate injury, it is for the jury to determine whether there was negligence on his part. Huhn v. Railroad, 92 Mo. 440, and cases cited. So too, where the danger is patent and is known to the servant, the master may be liable for injuries resulting therefrom, as when he has lulled the servant into a sense of security by insisting there is no danger, or has promised to remove the defect. Wood on Mas. & Ser., sec. 352; Conway v. Vulcan Iron Works, 62 Mo. 35.
And more to the point, in this case, a recent textbook uses this language: "If, therefore, the master orders the servant into a situation of danger, and he obeys, and is thereby injured, the law will not deny him a remedy against the master on the ground of contributory negligence, unless the danger was so glaring, that no prudent man would have entered into it, even where, like the servant, he was not entirely free to choose." 2 Thomp. on Neg. 975. There may be cases where the servant is ordered to do a particular act, and the order is so unreasonable, and the act so manifestly dangerous to life and limb, that the court, on the evidence, should declare the servant guilty of negligence in obeying the order of the master and should direct a non-suit. The general rule, however, is that the question is one for the jury. Keegan v. Kavanaugh, 62 Mo. 230.
It cannot be said that the servant and master are on an equal footing, even where they have equal knowledge of the danger. To so say is against common experience, and in disregard of the fact that the servant occupies a position subordinate to the master; the primary duty of the servant is obedience. It does not follow, because the servant could justify a disobedience of the...
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