Card v. Eddy

• Decision Date: 23 December 1893
• Citation: 24 S.W. 746
• Court: Missouri Supreme Court
• Parties: CARD v. EDDY et al.<SMALL><SUP>1</SUP></SMALL>

24 S.W. 746

CARD v. EDDY et al.¹

Supreme Court of Missiouri, Division No. 1.

December 23, 1893.

INJURIES TO EMPLOYE — FELLOW SERVANTS — CONTRIBUTORY NEGLIGENCE — BURDEN OF PROOF — INSTRUCTIONS.

1. Plaintiff, a section foreman, in charge of a gang of laborers, at work along the defendants' railway, was injured by a lump of coal thrown from a passing train by the locomotive fireman, in delivering a message from the road master, which the fireman had tied to the coal that hit plaintiff. It was an established custom on this road to throw off orders from the road master to the sectionmen from passing trains, but not in the manner adopted on this occasion. Held, that the fireman and section foreman were not fellow servants, within the rule of exemption of the master from liability.

2. In the matter of communicating necessary directions for the master's work, all employes represent the master, and the latter is liable for any want of ordinary care in directing the work, whereby injury results.

3. The fact that the section foreman was standing about four feet from the track when the train passed does not establish his contributory negligence as a matter of law.

4. The burden of proof as to plaintiff's contributory negligence in such an action is upon defendant.

5. Certain instructions reviewed, and held to state correctly the law of negligence, as applied to the above facts, and to be not conflicting.

(Syllabus by the Judge.)

Appeal from circuit court, Cooper county; E. L. Edwards, Judge.

Action for personal injuries by John Card against George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas & Texas Railway. There was judgment for plaintiff, and defendants appeal. Affirmed.

Jackson & Montgomery, for appellants. John R. Walker, for respondent.

BARCLAY, J.

This is an action for personal injuries, grounded on negligence. The defendants are the receivers of the Missouri, Kansas & Texas Railway Company. The pleadings need not be specially recited. Some of their features will be mentioned further along. The case was tried before Judge Edwards and a jury, with the result of a verdict and judgment for the plaintiff for $3,000, from which defendants appealed in the usual manner. That defendants were receivers in possession of and operating the railway line where the injury happened was admitted, and that plaintiff was at the time in their employ as a section foreman. The plaintiff offered evidence tending to prove that one day in June, 1889, he and several laborers, under his direction, were at work along defendants' railway, some three miles from Clifton Station. At that place the track was laid upon an embankment, or "fill," as it is sometimes called by the witnesses. While thus engaged, a train approached, and the fireman on the locomotive, as it passed, threw out a piece of coal, which struck plaintiff in the left eye, and destroyed the latter. It had been the custom for many years to transmit orders of the road master to the section foremen along the road, by forwarding the same to the nearest station, and then sending the message by some employe on the next train, who would throw the message off in passing the party for whom it was intended. In this instance the message of the road master was placed in charge of the fireman. It was inclosed in an envelope. The fireman tied it with a string around a piece of coal, about 3 by 1½ inches in size, and, while passing the spot where plaintiff was standing, (about 4 feet from the track,) hurled the message and coal at him in such a manner that his eye was put out, as stated. It also appears that this was the first occasion when such orders had been tied to anything when thrown off a train. Considerable evidence was submitted to show that the traffic (or operating) and road departments of this railway were separately managed and directed, each under the supervision of a chief superintendent. The defendants' evidence was directed entirely to the question of the extent of plaintiff's damages; but, as no issue is made in this appeal on that point, we need not go into it. The foregoing is a sufficient sketch of the material features of the case.

1. The first objection advanced is that, upon the facts, plaintiff has no cause of action. No question is raised looking to the review of the recent Cases of Parker (19 S. W. 1119) and Dixon (Id. 412) on the subject of common employment; but defendants insist that, in delivering the message of the road master, the fireman was, for the occasion, acting as an employe of the road department, and that, as such, he should be regarded as a fellow servant with the plaintiff in this department, which would relieve, as is claimed, the master from liability. But this line of argument is intercepted by another proposition. It is the master's personal duty to give direction to the work in...