Callahan v. St. Louis Merchants' Bridge Ter. Ry. Co.

• Decision Date: 10 December 1902
• Citation: 71 S.W. 208,170 Mo. 473
• Court: Missouri Supreme Court
• Parties: CALLAHAN v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.

71 S.W. 208

170 Mo. 473.

CALLAHAN v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.

Supreme Court of Missouri.

December 10, 1902.

INJURIES TO RAILROAD EMPLOYÉS—FELLOW SERVANTS—STATUTES—CONSTRUCTION—CONSTITUTIONALITY —SECTION HANDS.

1. Rev. St. 1899, § 2873, provides that every railroad corporation in the state shall be liable for all damages sustained by any servant "while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof." Held, that it was not limited in its application to servants of the railroad company actually engaged in the operation of trains thereon, but included all servants whose work was directly necessary for the running of trains over a track, and therefore it included section hands engaged in repairing the road.

2. The statute, as so construed, is not unconstitutional, as subjecting railroad companies to a liability to their employés not imposed on other persons or companies under similar conditions.

3. Where a section hand was stationed in the street below defendant's railroad track to warn other members of the section gang when it was safe for them to throw ties taken from the railroad into the street, and to warn pedestrians, and to remove the ties from the street, and such section hand was injured by being struck by a tie negligently thrown by the gang without being notified that it was safe to do so, while he was engaged in removing a child from a place of danger in the street, such section hand "was engaged in the work of operating such railroad," within Rev. St. 1899, § 2873.

Robinson, J., dissenting.

In banc. Appeal from St. Louis circuit court; Franklin Ferris, Judge.

Action by Thomas Callahan against the St. Louis Merchants' Bridge Terminal Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The following is the opinion in division No. 1:

MARSHALL, J.

This is an action predicated upon section 2873, Rev. St. 1899, for damages for personal injuries, by the plaintiff, an employé of the defendant, alleged to have been received in consequence of the negligence of the plaintiff's fellow servants, employés of the defendant. The plaintiff recovered a judgment for $6,500 in the circuit court, and the defendant appealed.

The pertinent allegations of the petition are as follows: "That the defendant was a corporation, and operated a railroad in the state of Missouri. That on the 15th day of November, 1898, the plaintiff was in the service of the defendant, aiding in operating its railroad at or near the bridge approach over Ferry street, in the city of St. Louis. That it was the duty of the plaintiff at said time to watch that people or vehicles were not injured by the fall of ties which were being removed by defendant's employés from its roadbed, and thrown down about 50 feet to the surface of Ferry street; and also to remove such ties from the street. That the rule and custom for doing the work was for the men above, before throwing a tie down to the street, to give notice to the man below that a tie was to be thrown, and then wait for a signal from him, before throwing the tie, that it was right and safe to throw the tie, thus enabling plaintiff to warn passersby out of danger and to keep out of danger himself. That on the day in question, whilst the plaintiff, in the due discharge of his said duty, was warning off and removing a child from said street, where it was in peril of a falling tie, should one be thrown, the defendant's servants above carelessly, and without giving any warning of their intention to throw down a tie, and, without receiving any signal from plaintiff that it was safe to do so, threw down a tie, which struck and injured the plaintiff." There was a further assignment of negligence, in that defendant's acting foreman negligently directed the tie to be so thrown without the usual signals. The answer is a general denial, coupled with the following special pleas: "Further answering plaintiff's petition, defendant states: That the injuries complained of by plaintiff in said petition were produced by the negligence of plaintiff contributing to the cause thereof. That plaintiff's fellow servants gave warning of their intention to lower the tie mentioned in plaintiff's petition, and plaintiff failed to heed the same. That it was usual and customary, in the lowering of the ties mentioned in plaintiff's petition, for plaintiff to notify his co-employés of the approach of pedestrians or vehicles, so that such ties might be held by said co-employés until such pedestrians or vehicles had passed; and plaintiff failed to give such notice in this instance, and by reason of the failure of plaintiff to so warn the employés of defendant of the approach of the pedestrian mentioned in plaintiff's petition, as was his duty, such tie was lowered and thrown down, whereby plaintiff was injured. That plaintiff failed and neglected to take reasonable and ordinary precautions to observe his surroundings, or to avoid the obvious dangers of his said situation, and thereby said injury was directly occasioned by his own omission to use ordinary care at and immediately before the time of his said injury. Further answering, defendant says that the injury complained of by plaintiff was occasioned by a danger incident to his said employment, and which plaintiff assumed in entering upon said employment. Further answering, defendant says that, if the injury complained of by plaintiff was occasioned by the negligence of defendant's servants, as alleged in plaintiff's petition, the said servants were fellow servants of plaintiff, and plaintiff and said fellow servants were not, at the time mentioned in plaintiff's petition, engaged in the work of operating defendant's railroad, and therefore defendant is not liable therefor." The reply is a general denial.

The trial disclosed the following facts: The defendant's railroad crosses Ferry street, in the city of St. Louis, by an overhead bridge, which is some 50 feet above the level of the street. The plaintiff was a member of a section gang that was engaged in repairing the railroad by taking out old ties and putting in new ones. When the old ties were taken out, they were thrown down onto Ferry street, instead of being carried away. The plaintiff was stationed on Ferry street to warn passers-by of the danger, and to remove the ties that were thus thrown upon the street. When the gang on the bridge were about to throw down a tie, they notified the plaintiff of their intention, and he signified to them whether or not the "coast was clear," and they did not throw the tie unless he so signified. While so engaged in such work, a small child appeared on Ferry street, and was in a place of peril. The plaintiff went to her, and, while engaged in removing her, the gang on the bridge threw a tie down on the street, which struck the plaintiff on the leg, and injured it so that it had to be amputated. The gang on the bridge gave the plaintiff no notice of their intention to throw the tie, and the plaintiff did not signify to the gang on the bridge that it was unsafe to do so, nor that the child was in peril, nor that he was going to or had gone to the child to remove it from its perilous position.

Two legal propositions present themselves upon this record: First, who are embraced in the provisions of section 2873, Rev. St. 1899? and, second, does the plaintiff come within such classes? and of these in their order.

1. Who are embraced in the provisions of section 2873, Rev. St. 1899? That section is as follows: "That every railroad corporation owning or operating a railroad in this state shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad, by reason of the negligence of any other agent or servant thereof: provided, that it may be shown that the person injured was guilty of negligence contributing as a proximate cause to produce the injury." The defendant contends that this law does not embrace every employé of a railroad, but that it applies only to such employés of a railroad as are subjected, by the character of the work they are employed to do, to the hazards incident to the running of a train. And, furthermore, the defendant contends that, if the law is construed to cover railroad employés who are not subjected to such hazards, but are only subject to such risks as would be incurred by the employés of any other person or corporation when engaged in similar work, then the law violates the equality clause of the federal constitution, in that it subjects the defendant to a liability to its employés that is not imposed upon any other person or company under similar conditions. On the other hand, the plaintiff contends that the law embraces not only the employés who are actually employed in moving a train, but also all those whose work is directly essential to enable the trains to move; and, as applied to this case, that it embraces a section gang engaged in repairing the track to enable the trains to safely run over it, and that the plaintiff was a member of such section gang, and that his duty was as directly connected with such work as was the work of any of the other members of the gang that were working upon the bridge. This case is one of first impression in this court. The only case bearing on this question that has heretofore been adjudicated in this state is Stubbs v. Railroad Co., 85 Mo. App. 192. In that case the Kansas City court of appeals, speaking through Ellison, J., held that the law embraced members of a section gang that was engaged in removing old rails and putting in new ones, and there one of the gang was permitted to recover for injuries received by the negligence of another member of the gang in suddenly dropping one end of a rail which he and the plaintiff were carrying. It is all-important to keep in mind the language of the statute. It is that the railroad shall be...