Bien v. St. Louis Transit Company
| Citation | 83 S.W. 986,108 Mo.App. 399 |
| Parties | BIEN, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Decision Date | 29 November 1904 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. Walter B. Douglas Judge.
AFFIRMED.
Judgment affirmed.
Boyle Priest & Lehmann, Crawley & Jamison and John T. Gose for appellant.
(1) The refusal of defendant's instruction in the nature of a demurrer offered at the close of plaintiff's evidence was error. He who relies upon the absence of the relation of fellow-servants, carries the burden of establishing its non-existence. Shaw v. Construction Co., 77 S.W. 96; Blessing v. Railway, 77 Mo. 410; Sheehan v Prosser, 55 Mo.App. 569. Where the essential facts are undisputed, the question whether one is a fellow-servant with another who caused his injury is a question of law. McGowan v. Railway, 61 Mo. 502. (2) These duties which the law declares are personal to the master and which he cannot delegate so as to relieve himself of responsibility for the manner in which they are performed are such as regard the safety of his premises, the suitableness of the tools, implements, machinery or material he procures or employs, and the servants he engages or makes use of. Cooley on Torts (2 Ed.), 647-667; Mechem on Agency, secs. 657-667; Brothers v. Carter, 52 Mo. 373; Dowling v. Allen, 74 Mo. 13; Bushly v. Railroad, 107 N.Y. 374; Parker v. Railway, 109 Mo. 362, 19 S.W. 1119; Schaub v. Railroad, 106 Mo. 74, 16 S.W. 924. (3) A vice-principal, then, is one who stands in the master's stead or one to whom the master entrusts the performance of these personal duties. Hawk v. Lumber Co., 166 Mo. 121, 65 S.W. 1022; Dowling v. Allen, 74 Mo. 13; Gormly v. Iron Works, 61 Mo. 492; Railroad v. Fort, 17 Wall. (U.S.) 553; Ryan v. Bogaley, 50 Mich. 179; Railroad v. May, 108 Ill. 388; Mutton v. Steamship Co., 78 Penn. 25; Corcoran v. Halbrook, 59 N.Y. 517; Mitchell v. Robinson, 80 Ind. 281; Bailey on Master's Liability for Injuries to Servant, 329; Crispin v. Babbitt, 81 N.Y. 522. (4) It makes no difference that one be a servant of superior authority who gave orders unless that authority and superiority extended to the duties which were personal to the master so as to make this superior servant the alter ego of the master. Marshall v. Schricker, 63 Mo. 563; Laughlin v. Railroad, 105 N.Y. 159; Hussey v. Coger, 112 N.Y. 614; Laning v. Railroad, 49 N.Y. 521; Kenney v. Shaw, 133 Mass. 501; Keystone Bridge Co. v. Newberry, 96 Penn. St. 246; Beaulieu v. Portland Co., 48 Mo. 295; Hath v. Peters, 55 Wis. 405; Cooley on Torts (2 Ed.), 665. (5) The one of whose negligence another complains must be a vice-principal not only in respect to certain duties at certain times, but must be also a vice-principal in respect to the particular act which results in the injury. He must be a vice-principal not only in rank but also the character of the particular act must stamp him a vice-principal in fact. As was said by GANTT, J., in Bane v. Irwin, 173 Mo. 317: "We agree with counsel for defendant, 'It is the act, and not the rank, of vice-principal which determines whether two employees are fellow-servants.'" In Miller v. Railroad, 109 Mo. 356, it was said that one may at the same time be a fellow-servant and an agent or representative of the master. The New York court, in Crispin v. Babbitt, thus clearly states the doctrine of dual capacity: "If a superior servant, who as to some duties represents the master, in doing a servant's work injures another servant, the master is not liable." "We regard the dual capacity doctrine" as "firmly and irrevocably fixed by law" in this State. Grattis v. Railroad, 153 Mo. 394, 55 S.W. 108; Moon v. Railroad, 85 Mo. 596; Lee v. D. B. & I. Works, 62 Mo. 565; Harper v. Railroad, 47 Mo. 580; Fogarty v. St. L. Transfer Co., 79 S. S. 667. (6) Another reason why defendant's demurrer should have been sustained is found in the plaintiff's admission of the violation of a rule of the company, that required a motorman who left his car to take his motor handle with him. It is well established that a master may make rules for the regulation of his employees, and if one is injured as a result of the violation of such rules, the master is not liable. Where the master makes and promulgates rules for the safety of the servant, the former is not liable for injuries resulting to the servant, which their observance would have prevented. Francis v. Railroad, 110 Mo. 387, 19 S.W. 935; Texas Co. v. Fields, 74 S.W. 930; Luebke v. Railroad, 63 Wis. 91; Railroad v. Langdon, 92 Pa. St. 21; Darracatt v. Railroad, 83 Va. 288; Prather v. Railroad, 80 Ga. 427; Railroad v. Long, 118 Ind. 579.
James M. Sutherland and Ernest E. Wood for respondent.
The evidence in this case clearly showed that Mr. Dring was a vice-principal of the defendant, and not a fellow-servant with the plaintiff, and, if that is the case, the company is certainly liable for his negligent acts in the discharge of the company's business. Carter v. Baldwin, 81 S.W. 207; Gormly v. Iron Works, 61 Mo. 492; Moore v. Railroad, 85 Mo. 588, considered and held not to be the law, in view of the later case of Dayharsh v. Railroad, 103 Mo. 570, 15 S.W. 554; Hutson v. Railroad, 50 Mo.App. 300; McDermott v. Railroad, 87 Mo. 285; Dutzi v. Geisel, 23 Mo.App. 676; Herriman v. Railroad, 27 Mo.App. 435; Dowling v. Allen, 74 Mo. 13; Clowers v. Railroad, 21 Mo.App. 213; Stephens v. Railroad, 96 Mo. 207, 9 S.W. 589; Schroeder v. Railroad, 108 Mo. 322, 18 S.W. 1094; Hutson v. Railroad, 50 Mo.App. 300; Cox v. Syenite Granite Co., 39 Mo.App. 424; Hall v. St. Joseph Water Co., 48 Mo.App. 356; Glover v. Kansas City Bolt and Nut Co., 153 Mo. 327, 55 S.W. 88; Russ v. Railway, 112 Mo. 45, 20 S.W. 472; Miller v. Railway, 109 Mo. 356, 19 S.W. 58; Grattis v. Railway, 153 Mo. 380, 55 S.W. 108; Foster v. Rey, 115 Mo. 165, 21 S.W. 916; Donahoe v. Kansas City, 136 Mo. 657, 38 S.W. 571; Bane v. Irwin, 172 Mo. 317, 72 S.W. 522; Haworth v. Railway, 94 Mo.App. 215, 68 S.W. 111; Strode v. Conkey, 78 S.W. 678.
Plaintiff was badly hurt by being run against by one of the defendant's trolley cars. The accident occurred the morning of November 28, 1903. Plaintiff was one of the defendant's motormen and on that morning was ordered by a foreman named Dring to take a car out of the carsheds at Delmar and DeBalaviere avenues. Those sheds are the division headquarters for five or six lines of street cars operated by the Transit Company; among them the Olive street, the Delmar avenue and the Page avenue lines. Several hundred cars go out of the sheds daily on the different lines. The particular car which Bien was ordered to take out that morning was new, and much larger than those theretofore used by the defendant company. In obedience to the direction of Dring, Bien started out of the carsheds with the car, but stopped after passing outside, a car's length or so from a structure called the sand shed, to get some sand for use on the trip, as was his duty. It appears that Dring had ordered him to stop when he did in order to put a signboard on the car. At any rate he put the signboard on and then proceeded to get sand from the bin to put in the sand-boxes of the car. The car moved out of the carsheds on the south track, which ran within three inches of the northeast corner of the sandbin, curving thence to the south and passing the eastern corner of the bin only a foot or less from it. Bien had taken one bucket of sand to the car and had stooped down outside the bin and between it and the track, to fill another bucket, when Dring got on the standing car, and, in order to get it out of the way of another car which was in the rear, undertook to run it out of the shed himself. He started the car forward suddenly, without giving any warning, and crushed Bien against the side of the sandbin. Dring knew at the time that Bien was getting sand and if he had looked he could have seen him thirty or forty feet in advance of the car.
The main defense in the case is that Dring was a fellow-servant of Bien. This is contested by respondent's counsel, who insist that he was a foreman or vice-principal. The regular division superintendent about the sheds was one Myers; and it is the contention of the Transit Company that Dring had no authority over the men working about those yards, except to tell the motormen and conductors what cars to take out and when to take them. Another defense is that Bien, in obedience to a rule of the company, should have taken with him, when he went for the sand, his motor handle by which the motion of the car is controlled; that if this had been done the car could not have been started; and, therefore, Bien's own negligence contributed to the accident. On this point it is proper to state some testimony: The chutes through which sand was let from the sand sheds into the buckets were opened by the use of the ordinary motor handle with which motormen operate their cars; that is to say, the device for taking out sand was constructed in such a manner that it could be opened by this motor handle. When Bien went for sand on this occasion he took with him the motor handle of the new car, thinking he could open a chute with it; but that motor handle was constructed differently from those on other cars, and did not fit the chutes. So Bien carried it back to the car it belonged to and laid it on the motor box in the front of the car; then got an ordinary motor handle and was getting sand with it when hurt. There was testimony that the men about those sheds and yards obeyed all the orders given by Dring in the absence of Myers. Unquestionably negligence on the part of Dring was conclusively shown, and the defendant is liable unless exonerated by Dring's standing in the relation of...
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