Card v. Eddy

• Decision Date: 02 July 1895
• Parties: Card v. Eddy et al., Appellants
• Court: Missouri Supreme Court

28 S.W. 979

129 Mo. 510

Card v. Eddy et al., Appellants

Supreme Court of Missouri

July 2, 1895

Appeal from Cooper Circuit Court. -- Hon. E. L. Edwards, Judge.

Reversed.

Jackson & Montgomery for appellants.

(1) The petition does not state facts sufficient to constitute a cause of action. (2) Plaintiff's evidence failed to make out a case, and the demurrer to the evidence should have been sustained. (3) The plaintiff and the person who threw the message and lump of coal from the train were fellow servants and even if the latter was negligent plaintiff can not recover. For this reason the court erred in giving the plaintiff's second instruction. In delivering the message the fireman did not act as fireman, and performed no act pertaining to or within the scope of the duties of a fireman. In that which he did he was acting entirely within the range of the same character and department of service as the plaintiff, while the instruction was dealing with their relations under entirely different duties and services. (4) The plaintiff was guilty of contributing negligence. He stood within four feet of where the train would pass, and watched the fireman as he prepared to throw the message. He knew the train was running rapidly and that the missile was to be thrown from it as it passed him, and yet he stood within arm's reach and failed to take any precaution for his own safety. No prudent man would have taken such risks. (5) There was error in the instructions because they were contradictory.

John R Walker for respondent.

(1) The petition states a cause of action. The allegations of the petition and the evidence on the trial show gross negligence and recklessness on the part of the defendants. (2) The evidence showed that it had been the practice for many years to deliver orders to section foremen, by having some one on the trains throw them off when they reached the foremen; but the evidence further showed that this was the first time when the orders were tied to pieces of coal or anything else dangerous and thrown off. It was the grossest negligence to throw these orders tied to this piece of coal as they were. (3) The plaintiff and fireman were not fellow servants. The late decisions and elaborate discussion of this question have settled this point. Sullivan v. Railroad, 97 Mo 113; Dixon v. Railroad, 19 S.W. 412; Parker v. Railroad, 19 S.W. 1119; Schlereth v. Railroad, 19 S.W. 1134; Railroad v. Moranda, 93 Ill. 302, and same case, 108 Ill. 576, almost identical in its facts with the case at bar. In delivering the message, under the custom and practice of many years, the fireman was acting in the discharge of his duties as fireman. He represented the roadmaster, whose duty it was to give orders and directions, and his acts were the acts of the company. Harper v. Railroad, 47 Mo. 567; Moore v. Railroad, 85 Mo. 588; Miller v. Railroad, 109 Mo. 350; Railroad v. De Armond, 86 Tenn. 73. (4) First. The plaintiff was not guilty of contributory negligence. The evidence conclusively shows that it was safe and prudent for plaintiff to stand where he did while the train was passing. Ring v. Railroad, 112 Mo. 220. Second. Contributory negligence of the plaintiff is a matter of defense, and must be pleaded and proved in order to escape liability; and plaintiff's first instruction was proper. Schlereth v. Railroad, 96 Mo. 509, and cases cited. (5) There was no contradiction in the instructions. In plaintiff's first instruction the jury were required to find that it was the custom for the roadmaster's orders to be given plaintiff by being thrown off to him by some one of the train men as the train would pass the place where plaintiff was at work; whereas, defendants' second and third instructions required the jury to find that it was not the usual and ordinary manner of delivering such messages to have a piece of coal or some heavier substance tied to them. There is no contradiction in this.

Macfarlane, J. Black, C. J., Gantt and Sherwood, JJ., concur. Brace, Barclay and Burgess, JJ., dissent. Brace, C. J., and Burgess, J., concur in this opinion.

OPINION

In Banc.

Macfarlane J.

I adopt, in substance, the statement made by Barclay, J., to his opinion filed in division one. 24 S.W. 746.

"This is an action for personal injuries grounded on negligence. The defendants are the receivers of the M., K. & T. Railway Co. The pleadings need not be specially recited.

"The case was tried before the court and a jury with the result of a verdict and judgment for plaintiff for $ 3,000, from which defendants appealed.

"That defendants were receivers in possession of, and operating, the railway line where the injury happened was admitted, and also 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 the defendant's railway, some three miles from Clifton station. At that place the track was laid upon an embankment. 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 roadmaster to the section foremen along the road, by forwarding the same to the nearest station, and then sending the message by some employee 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 roadmaster 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 three by one and one half inches in size; and, while passing the spot where plaintiff was standing (about four feet from the track), threw the message and coal to him in such a manner that his eye was put out.

"Considerable evidence was submitted to show that the traffic (or operating) and road (or construction) departments of this railway were separately managed and directed, each under the supervision of a chief superintendent.

"The defendant's evidence (so far as it contradicted plaintiff's) 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."

Defendant insists that plaintiff and the fireman, in the circumstances, were mere fellow servants, and the receivers were not therefore liable for the negligence of the one which resulted in the injury to the other. Counsel for plaintiff, on the other hand, insists that defendant is liable for the injuries caused by the negligent manner in which the message was delivered upon one of two grounds: First, that the fireman, in performing the duty imposed upon him, was the agent, or vice principal, of the receivers, and his negligence was that of his principal; second, that if the fireman was not a vice principal of defendant, then he and plaintiff were mere servants of a common master, their employment was in different parts of the service, and the receivers were not exempt from liability on account of the fellow servant rule.

I. I am able to see no possible ground upon which the first contention can be sustained. I agree, as claimed, that power to control and direct is not an absolute test by which to determine whether the relation of one employee to another is that of vice principal. The liability of the master for injury done to one servant through the negligence of another, engaged in the same department of service, is made "to depend upon the character of the act in the performance of which the injury arises, without regard to the rank of the employee performing it. If it is one pertaining to the duty the master owes to his servants, he is responsible to them for the manner of its performance." Flike v. Railway, 53 N.Y. 549; Crispin v. Babbitt, 81 N.Y. 516; Ford v. Railway, 110 Mass. 240.

If, therefore, a careful delivery of the message was a duty the receivers personally owed to the plaintiff, the mere rank or grade of the fireman would not relieve them from liability if plaintiff was injured by a negligent performance of the duty. The liability on this ground must be determined from the character of the act performed. If it was one the receivers owed to plaintiff it was their act. If it was one falling simply within the duty of the servant it was the act of the servant, and the defendant would not be liable for its negligent performance, assuming that the relation of plaintiff and the fireman did not bring them within the department rule.

The act the fireman was required to perform was the delivery from a running train of a message to the plaintiff. It can not matter how important the message may have been, nor that it contained an order the receivers, through their roadmaster, or other agent, were required to give. The injury did not result from the nature of the message or from a failure to transmit it. The service required of the fireman was that of a servant which any messenger could have performed, and the manner of its delivery did not pertain to the duty the receivers owed to plaintiff. They owed him the duty only of using reasonable care to select a competent and careful messenger.

After the master has discharged the duty he owes his servants, such as proper care in the selection of those with whom they are required to work, providing suitable tools and machinery, etc., the servants must look to each other for protection in the performance of their respective duties.

The fireman can be regarded as the agent or vice principal of the receivers under no test...