Cook v. Hannibal & St. Joe. R.R. Co.
| Decision Date | 31 October 1876 |
| Parties | LAWRENCE COOK, Respondent, v. THE HANNIBAL & ST. JOE. R. R. CO., Appellant. |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court.
James Carr, for Appellant.
I. The judgment is erroneous as being for $542.33, when the damages claimed are only $500. This is an error on the face of the record, and will operate a reversal. (Carr vs. Edwards, 1 Mo. 137; Hayton vs. Hope, 3 Mo. 53; Maupin vs. Triplett, 5 Mo. 423: West, Assignee of Malay, vs. Miles, 9 Mo. 168; Cox vs. The City of St. Louis, 11 Mo. 431; Beckwith, Adm'r of Smith, vs. Boyce, 12 Mo. 440; Pope vs. Salsman, 35 Mo. 382.)
II. There is no cause of action stated in the respondent's petition; hence, the court below erred in not sustaining the appellant's motion in arrest of judgment. .)
III. The teamsters and superintendent were fellow servants, and, quoad the master, of the same grade, and there is no allegation that the respondent's fellow servants did not possess the requisite capacity and skill. (Lee vs. Detroit Bridge & Iron Co., 62 Mo. 565; Columbus &c. R. R. Co. vs. Arnold's Adm'r, 31 Ind. 174; Warner vs. Erie Rly. Co., 39 N. Y. 468; Warner vs. Baltimore & Ohio R. R. Co., 32 Md. 411; Seaver vs. Boston & Maine R. R. Co., 14 Gray, 466; Pennsylvania R. R. Co. vs. Bug, 47 Penn. St. 480.)
IV. The bank of the river was a natural formation. When Bartley ordered the respondent to drive up to this point he did not know of the danger. It was a latent danger. Hence, the appellant is not liable for any damage ensuing from it. (Warner vs. Erie. R. R. Co., supra; Ill. Cent. R. R. Co., v. Jewell, Adm'x, 46 Ill. 99; Wonder vs. Bal. & O. R. R. Co., 32 Md. 411; Seaver vs. Boston & Maine R. R. Co., 14 Gray, 466.)
V. The appellant employed Bartley to lay the rock in the form of rip-raps, and Bartley gave the order which resulted in the damage. On this state of facts the doctrine of respondeat superior does not obtain as between the appellant and respondent.
VI. The demurrer to the respondent's evidence should have been sustained. Respondent's evidence did not show, or even tend to show, any cause of action. White & Titus, for Respondent.
This action was properly brought, and defendant is liable for the acts of its agents in the course of their employment, and the petition is good. .)
The petition in this case is as follows: “Plaintiff states that on the 10th of July, 1872, he owned a team of mules and a wagon, worth $500; that on or about said date said team was engaged in hauling and depositing rock, under the supervision and directions of defendant, which rock was used by defendant in rip-rapping the bank of the Missouri river, and the said defendant, by its agents and servants so engaged in supervising and directing said work of rip-rapping and hauling, then and there willfully, wrongfully and negligently directed the driving of and conducting of said mules and wagon of plaintiff, so engaged; that by said direction and command said defendant caused said mules and wagon to be precipitated into the Missouri river, where they were lost, whereby plaintiff has suffered damage to the amount of five hundred dollars, for which, and costs, he prays judgment.”
A demurrer to this was filed and overruled, and by leave an answer was filed, containing a general denial of every allegation of the petition, and a specific allegation of contributing negligence on the part of the plaintiff.
As the main point in this case arises from a demurrer to the evidence of plaintiff, its tendency must be stated in substance. The defendant was rip-rapping the Missouri river at the place or near where this accident occurred. Mr. Bartley was then superintendent of the work. His business was, of course, to make the workmen under his control put the rock in the places needed. He was the person to determine where they were needed. The rock was hauled under a contract between the defendant and McNamara and Kelly, and the plaintiff was a subcontractor under McNamara and Kelly, and the man who drove the wagon was a servant of plaintiff.
The evidence tended to show that there was a crack on the bank of the river, about 6 inches wide, and some 10 or 15 feet from the edge of the bank, which alarmed several of the teamsters employed in hauling rock by McNamara; that the orders of defendant's superintendent Bartley, to them to drive out between the crack and the edge of the bank were not regarded, and disobeyed by several of the teamsters, because they considered it very unsafe to do so; that this crack had been filled up with sawdust, sand and dirt under direction of superintendent Bartley, and the plaintiff's servant, who, on approaching this fissure, expressed apprehensions, but was ordered peremptorily by Bartley to drive up; that there was no danger; that “we,”--the company--were responsible. It appeared that the servant obeyed the orders of Bartley, and his team was ““stalled” on the dirt, sand and sawdust, and whilst engaged in unloading, the team and wagon and driver were all precipitated into the river by the caving in of the bank.
Several witnesses testified that the fissure was perceptible to every one, but was covered over before the driver of plaintiff's wagon approached on the day of the accident. There was evidence to the contrary given by defendant.
No instructions were asked or given in the case, so far as the record shows. The verdict of the jury was $542.33. There was a motion for a new trial, and in arrest, which was overruled.
The only questions presented are therefore, whether the petition stated a cause of action, and whether the demurrer to the plaintiff's evidence should have been sustained.
We see no objections to the petition. It is...
To continue reading
Request your trial
-
Swanson v. Central Surety & Ins. Corp., 35260.
...Copeland, 8 Mo. 268; Houghtaling v. Ball, 19 Mo. 84; St. Vrain v. Columbia Bottom Levee Co., 56 Mo. 590; Cook v. Hannibal & St. J. Ry. Co., 63 Mo. 397; Kelly v. Hannibal & St. J. Ry. Co., 70 Mo. 604. (b) The rule is the same where the case is tried before the court, sitting as a jury. Kauff......
-
Thompson v. McCune
... ... evidence their verdict must be for defendants. Cook v ... Railroad Co., 63 Mo. 397; Holliday v. Jones, 59 ... Mo. 482; ... ...
-
Grattis v. Kansas City, Pittsburg & Gulf Railroad Company
... ... still remained in the defendant's employ. Lucey v ... Hannibal Oil Co., 129 Mo. 32; Holloran v. Foundry ... Co., 133 Mo. 470; Wray ... Vulcan, 61 Mo. 492; Whalen v ... Church, 62 Mo. 326; Cook v. Railroad, 63 Mo ... 397; Moore v. Railroad, 85 Mo. 588; Stephens ... ...
-
Burdict v. The Missouri Pacific Railway Company
...McCullough v. Ins. Co., 21 S.W. 207; Hahn v. Sweazea, 29 Mo. 199; Tilford v. Ramsey, 43 Mo. 420; Loyd v. Railroad, 53 Mo. 514; Cook v. Railroad, 63 Mo. 397; Johnson Morrow, 60 Mo. 340; Miller v. Hardin, 64 Mo. 545; Waldhier v. Railway, 87 Mo. 48; Smith v. Railroad, 92 Mo. 374; Keen v. Schne......