Dixon v. Chicago & A. R. Co.

• Citation: 109 Mo. 413,19 S.W. 412
• Court: United States State Supreme Court of Missouri
• Decision Date: 09 May 1892
• Parties: DIXON v. CHICAGO & A. R. CO.

19 S.W. 412

109 Mo. 413

DIXON v. CHICAGO & A. R. CO.

Supreme Court of Missouri.

May 9, 1892.

INJURY TO EMPLOYE — FELLOW SERVANTS — CONTRIBUTORY NEGLIGENCE — EVIDENCE.

1. A laborer, working in defendant's quarry, under direction of a foreman having no connection with the train service, is not a fellow servant of employes operating a passenger train on defendant's line.

2. The rule of exemption on account of fellow service discussed.

3. A quarry hand was working about a railway track, near a curve at which locomotives were required, by defendant's rules, to wnistle. His duties compelled him to frequently stand on the track with his back towards the curve, and to attend to the movement of small cars carrying rock across the main track to an inclined plane leading to a rock crusher. He was hit and killed by an engine coming rapidly around the curve without the required signal: held, in the circumstances stated in the opinion, that the question whether he used ordinary care to avoid danger was one of fact for the jury.

4. The omission of the warning signal mentioned was evidence of negligence in running the train.

SHERWOOD, C.J., and GANTT, J., dissenting.

(Syllabus by the Judge.)

In banc. Appeal from circuit court, Lafayette county; RICHARD FIELD, Judge.

Action by Katie Dixon, widow, for damages for the death of Charles Dixon. Defendant had judgment under an instruction of the court. Plaintiff appealed.

IN DIVISION NO. 1.

(Nov. 9, 1891.)

The following statement of facts was made by BARCLAY, J.: Plaintiff has appealed from a judgment for defendant in an action for the negligent killing of her husband. No point arises on the pleadings. These are the main facts: Defendant operated a quarry and a rock-crusher in Jackson county, Mo., for preparing rock to ballast its road. The quarry lay a short distance south, and extended 200 or 300 feet alongside of defendant's line. From different parts of the quarry narrow tracks ran, converging at a turntable, 7 or 8 feet in diameter, the north edge of which was 9 feet south of defendant's main track. The rock-crusher stood 40 or 50 feet north of the track. From the turntable, a small track, called by witnesses a "strap track," crossed the main line at a right angle, and ran up an inclined plane to the crushing machine, 30 or 40 feet from the ground. Small cars carried the rock to the crusher. They were first drawn along the quarry tracks by a mule to the turntable, and shifted by it into position to strike the strap track. Then a wire cable (fastened at one end to a drum in the crushing machinery) was made fast to one car at a time, which was pulled across the railroad track, up the inclined plane, to the crusher, by means of the steam power used to operate that machine. The rock was unloaded, and the empty car let down to the turntable again by the same wire cable. The latter had a ring or clevis at the end, by which it was attached (as occasion required) to a large iron hook on each car. A number of hands were engaged in operating this quarry under the superintendence of a foreman who had power to employ and discharge subordinates without consulting any one, but had no control whatever over trains or the trainmen. Plaintiff's husband had been at work at the quarry a long time. About a month before his death he had been assigned the duty of attaching the cable to the little cars between the turntable and the crusher, and detaching it again when the cars returned, as has been described. He was also required to assist in turning the table to get the cars in proper position. Defendant's line approaches the crusher from the east, for some 2,000 feet, on an ascending grade of about 48 feet to the mile. A short distance (variously stated at from 100 to 400 feet) east of the crusher a curve (of 40 minutes to each 100 feet) begins, and extends thence eastward about 1,900 feet, bearing towards the south. While plaintiff's husband had been there at work, about a dozen trains passed daily, including two regular passenger trains each morning, one about 8 o'clock and the other about 30 minutes later. A rule of the company required a signal by sounding the whistle to be given at all obscure curves. An obscure curve is one in which a train at one end cannot be seen from the other end of the curve. It is conceded that the curve in question was an obscure one, and that it was usual for locomotive engines to whistle before reaching the quarry. On the morning of December 20, 1886, about 8 o'clock, one of defendant's passenger trains from the east, within 2 or 3 minutes of its regular time, running at the rate of 25 or 28 miles an hour, approached the crusher. Plaintiff's evidence strongly tends to prove that no whistle was sounded from it. When the train reached the "strap track" crossing, it struck and killed Dixon, who was working there. Both wheels of the engine passed over the cable at that place. There was proof of plaintiff's relationship to the deceased, and of all other formal matters; but the trial court declared the law to be that, on the facts above outlined, plaintiff could not recover, "because the said engineer and Dixon were fellow servants." Accordingly the jury returned a verdict for defendant. After saving exceptions, and taking the usual steps for a review, plaintiff appealed. All other necessary facts are stated in the opinion of the court.

Graves & Aull, for appellant. Geo. B. Macfarlane, for respondent.

BARCLAY, J., (after stating the facts as above.)

Plaintiff, as the widow of the deceased, Mr. Dixon, sues under the damage act, (now chapter 49, Rev. St. 1889,) claiming the statutory recovery for his death, caused, as is charged, by negligence in the operation of one of defendant's passenger trains. The deceased was a quarry laborer under orders of a foreman who had entire control of the quarry, represented the defendant there, hired, discharged, and directed the men, and had no connection with the train service, so far as appears, in any way. The first decisive question is whether deceased and the passenger train men are to be regarded as fellow servants, within the meaning of the rule exempting the master from liability for injuries negligently inflicted upon one employe by another in a common employment. This rule has long been acknowledged as part of the general common law, but efforts to apply it in particular cases have led to expressions of wholly irreconcilable views among eminent jurists. These differences seem to spring from the difficulty experienced in assigning the reasons for the rule itself to serve as solid premises in applying it. "Public policy," (McDermott v. Railroad Co., [1860,] 30 Mo. 116;) "implied contract," (Hutchinson v. Railroad Co., [1850,] 5 Exch. 343; Lovell v. Howell, [1876,] 1 C. P. Div. 161,) "general convenience" and "expediency," (Farwell v. Railroad, [1842,] 4 Metc. [Mass.] 49,) have been severally mentioned and enlarged upon by learned judges as grounds on which it should stand; but, whatever strength those grounds may have, a stronger reason for its existence to-day is stare decisis itself, however, a maxim of cogent force in determining judicial action in countries tracing their systems of law to the English source. The doctrine of exemption is of comparatively recent origin. Its history has been frequently written, and is too familiar to the legal profession to justify repetition here. It sprang into life suddenly, with remarkable vitality and power, and, as originally formulated, was supposed to control many states of facts to which it would not now be applied anywhere. It was at first thought to exempt the master from liability for injury to one servant by reason of the neglect of another to furnish or maintain a reasonably safe plant and machinery for the master's work, of whose defects the injured servant was ignorant, (Waller v. Railroad Co., [1863,] 2 Hurl. & C. 102; McDermott v. Railroad Co., [1860,] 30 Mo. 115;) but such an application of it is now universally discarded, either because of statutory declarations on the subject, (for example, the "Gladstone Bill," in England, 43 & 44 Vict. [1880,] c. 42, § 1; Mass. Act, [1887,] c. 270, etc.,) or of decisions by the courts without the aid of legislation, (Lewis v. Railroad Co., [1875,] 59 Mo. 495; King v. Railroad Co., [1882,] 14 Fed. Rep. 277; Railroad v. Herbert, [1886,] 116 U. S. 642, 6 Sup. Ct. Rep. 590.) Again, the scope of the rule was long supposed to relieve the master of responsibility for negligence of a servant under whose direction another was working and by whose neglect the latter was injured, though the negligence of the former may have involved the exercise of the supervising control delegated to the superior servant. [Albro v. Canal Co., (1850,) 6 Cush. 75, and Howells v. Steel Co., (1874,) 32 L. T. (N. S.) 19, will illustrate that line of decisions sufficiently.] And, although that view is still approved in some quarters, the weight of authority at this time in this country is to the contrary. Pantzar v. Mining Co., (1885,) 99 N. Y. 368; Railroad Co. v. Bowler, (1872,) 9 Heisk. 866; Darrigan v. Railroad Co., (1884,) 52 Conn. 285; Railroad Co. v. Ross, (1884,) 112 U. S. 377, 5 Sup. Ct. Rep. 184; Moore v. Railway Co., (1885,) 85 Mo. 588.

But the demands of the case at bar do not make it necessary to enter upon any general discussion of the changes that have taken place in the law on this topic since it began to engage the attention of the courts. Suffice it, for the present, to say that maturer consideration by the judiciary, and the emphatic commands of legislation in some localities, have greatly modified the rigor and narrowed the rule of exemption as originally put forth. [Besides the statutes already mentioned, note Alabama Acts 1885, p. 115, also Code 1886, § 2590; Florida Laws 1887, c. 3741; Georgia Acts 1885, p. 115, also Code 1873, § 3036; Iowa Laws 1862, c. 169, also Code 1880, § 1307; Kansas Laws 1874, c. 93; Minnesota Laws 1887,...