Edge v. Southwest Missouri Electric Ry. Co.

• Decision Date: 01 July 1907
• Citation: 104 S.W. 90,206 Mo. 471
• Parties: EDGE v. SOUTHWEST MISSOURI ELECTRIC RY. CO.
• Court: Missouri Supreme Court

104 S.W. 90

206 Mo. 471

EDGE v. SOUTHWEST MISSOURI ELECTRIC RY. CO.

Supreme Court of Missouri, Division No. 2.

July 1, 1907.

1. MASTER AND SERVANT—INJURY TO SERVANT—VICE PRINCIPALS.

A car dispatcher, having not only control of the motormen and conductors of an interurban electric railway, but also control of the cars and their operation, is not a fellow servant of the motormen and conductors, but is a vice principal.

2. SAME.

An employé intrusted with the performance of the employer's personal duties is, in regard to those duties, a vice principal, and the employer is liable for injuries to a co-employé resulting from the negligence of the employé.

3. SAME.

A dispatcher of an interurban electric railway company was a vice principal, and not a fellow servant, of the conductors and motormen.

4. SAME—CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

In an action against an electric railway company for injuries to a motorman jumping from his car to avoid injury in a collision with another car, held, that the question of his contributory negligence was for the jury.

5. SAME—NEGLIGENCE—QUESTION FOR JURY.

In an action against an electric railway company for injuries to a motorman jumping from his car to avoid injury in a collision with another car, held, that the question of the negligence of the company in bringing about a collision was for the jury.

6. SAME—STATUTORY REGULATIONS.

The fellow servant act of 1897 applies to a company operating an electric railway about 35 miles in length, passing through 12 or 15 towns, with but little trackage in cities.

7. EVIDENCE—HEARSAY EVIDENCE.

In an action against an electric railway company for injuries to a motorman jumping from a car to avoid injury in a collision with another car, the conductor of the car testified that he called up the car dispatcher by telephone for instructions and received instructions

which he repeated to the car dispatcher. One of the questions in issue was as to what the instructions were. Held, that witnesses were properly permitted to testify in corroboration of what the conductor stated over the telephone to the car dispatcher, as against the objection that the same was hearsay.

8. PLEADING—AMENDMENT—ALLOWANCE— NEW CAUSE OF ACTION.

Where the original petition in an action against an electric railway company for injuries to a motorman alleged that he was injured by the collision of his car with another car, the court properly allowed an amendment alleging that he jumped from the car on seeing that a collision was inevitable.

9. EVIDENCE—PHOTOGRAPHS—ADMISSIBILITY.

In an action against an electric railway company for injuries to a motorman jumping from a car to avoid injury in a collision with another car, photographs of the cars and surroundings taken on the day of the accident were properly received in evidence to show the physical conditions existing at the time of the accident and to throw light on the rate of the speed of the cars at the time of the collision.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by W. A. Edge against the Southwest Missouri Electric Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This suit was brought in the circuit court of Jasper county by W. A. Edge against the defendant for the recovery of the sum of $25,000 for personal injuries received by him in jumping from a car, caused by the alleged negligence of defendant in permitting a collision to occur on its road between two of its cars.

For his cause of action, the plaintiff states that the defendant is now, and at all times hereinafter mentioned was, a corporation organized and doing business under the laws of the state of Missouri; that as such corporation it is now, and at all times hereinafter mentioned was, engaged in the operation of an electric railway between the city of Carthage, Mo., and the city of Galena, Kan., running through the cities of Joplin, Webb City, and Carterville, Mo.; that the railway of the defendant has now, and at all times hereinafter mentioned had, a great many short and abrupt curves, and many of said curves are in deep cuts and around embankments and groves of trees, so that the employés of defendant in charge of and operating its cars can see only a short distance ahead, when about to round, and when rounding, said curves with the cars of defendant, and so that cars approaching each other on said track cannot be seen by the men in charge thereof until they get within a very short distance of each other; that the defendant requires its employés in charge of and operating its said cars to make and maintain a certain schedule of time, to wit, about 15 miles an hour, that in order to make and maintain said schedule, and to make the required stops at railroad crossings, and to allow passengers to embark and disembark from said cars, and to make other necessary stops in the operation of said cars, it is necessary for the employés of defendant in charge of and operating said cars to run the same at a very rapid rate of speed while rounding the aforesaid curves in the railway crack of defendant, as well as when running over a straight track, which facts are well known to the defendant; that on the 17th day of August, 1903, plaintiff was a motorneer, and Buren Moad was a conductor, in the employ of defendant, and in charge of car No. 30 of defendant's line, in transit from Carthage, Mo., to Galena, Kan.; that at said time another one of defendant's cars, in charge of employés of defendant, was bound for the city of Carthage, the Carthage-bound car being known as No. 29; that on August 17, 1903, Lawrence Havens was one of the car dispatchers of defendant at its Webb City office; that it was the duty of a car dispatcher to superintend, control, and direct the employés of defendant while engaged in the work of moving the cars over the track of defendant's road, to give orders, by telephone, to employés in charge of and operating cars of defendant, at certain telephone stations along the railway of defendant, directing them as to when and where they should pass, with the cars of which they were in charge, other cars of defendant's which were running in opposite directions, and the said employés were bound to obey said orders; that it was the duty of a car dispatcher to transmit by telephone to said stations said orders to the employés of defendant in charge of and operating its cars on its said railway, and to insure the correct transmission it was his duty to have the orders correctly repeated back by the employé receiving them; that said car No. 30 in transit from Carthage, Mo., to Galena, Kan., was stopped at Morgan Station by the said employés of defendant in charge thereof for the purpose of receiving orders by telephone from the car dispatcher of defendant at its Webb City office; that it was the duty of the conductor in charge of a car of defendant to receive the said orders at the telephone stations aforesaid, repeat them back, and, when approved by the car dispatcher, to transmit the said orders to his motoneer; that, pursuant to and in performance of that duty, Conductor Buren Moad, of said car No. 30, entered the telephone station of defendant at Morgan Station for the purpose of receiving orders; that at said time Lawrence Havens was acting as the car dispatcher for defendant; that the said Lawrence Havens carelessly and negligently transmitted to the said Buren Moad an order for car No. 30 to pass car No. 29 at Syracuse, look out for car No. 17 at Lakeside, and go to Motley; that at that time car No. 29 was in transit over the same line of track for Carthage Mo., with orders from defendant's car dispatcher to pass car No. 30 at Morgan Station; that, because of said careless, negligent, and conflicting orders, said car No. 30, in transit to Motley, pursuant to said orders, when it was about to round one of the curves of defendant's line about a mile west of Morgan Station, where it was impossible to see an approaching car more than 150 to 200 feet ahead, and when plaintiff was in the exercise of due care, collided with said car No. 29; that because of said collision plaintiff was seriously and permanently injured, in that his right kneecap was split, and in that the muscles and ligaments of his left arm were torn and lacerated to such an extent as to permanently impair its use, and the scapula on the left shoulder broken down to the extent of an inch and a half, and in that several of the processes of the spine at the base of the neck were broken off, and the spinal chord so injured as to seriously impair plaintiff's ability to turn his head, and in that he received severe scalp wounds above the forehead, and another near the base of the brain, and in that his skull was crushed on the right side near the median line above the nervous center of the brain, thereby necessitating the removal of a piece of the skull two inches in diameter, leaving the brain exposed and unprotected; that because of these injuries plaintiff is partially paralyzed in the left side, and has suffered, and will continue to suffer, great pain, and has been, and will be for the remainder of his life, disabled from the performance of manual labor, his only means of obtaining a livelihood; that by reason of the above injuries the plaintiff's sanity is greatly endangered, and total paralysis is a constant menace. Plaintiff further states that his time on and prior to August 17, 1903, was worth not less than $50 a month, and that by reason of his injuries, as aforesaid, he has lost the value of his time from August 17, 1903. Wherefore, in consideration of the premises, plaintiff is damaged in the sum of $25,000, for which he prays judgment.

At the close of plaintiff's case, defendant offered a demurrer to the evidence, which was by the court refused, and defendant excepted. Plaintiff thereupon asked leave to file an amended petition. Defendant objected to the filing of the amended...