Edge v. Southwest Missouri Electric Railway Co.

Decision Date13 July 1907
Citation104 S.W. 90,206 Mo. 471
PartiesEDGE v. SOUTHWEST MISSOURI ELECTRIC RAILWAY COMPANY, Appellant
CourtMissouri Supreme Court

Appeal from Jasper Circuit Court. -- Hon. Jos. D. Perkins, Judge.

Affirmed.

McReynolds & Halliburton for appellant.

(1) The court erred in admitting any evidence under the petition in this cause. (a) The Fellow-Servant Law of 1897 did not apply to street railroads. Sams v. Railroad, 174 Mo. 53; Funk v. Railroad, 61 Minn. 436; Lundquist v Railroad, 65 Minn. 387; Riley v. Galveston, 13 Tex. Civ. App. 247. (b) Havens (car dispatcher or starter) and plaintiff were fellow-servants, and defendant is not liable for negligence (if any) of Havens. Railroad v Dwyer, 57 Ill.App. 440; Thompson v. Railroad (Ind.), 53 N.E. 462; Murray v. Railroad, 98 Mo 575; Sams v. Railroad, 174 Mo. 63. (2) The court erred in permitting witnesses to testify as to what they heard the conductor Moad say at the telephone at Morgan's switch; it was not a part of the res gestae, took place before the accident and was hearsay, pure and simple, and self-serving, to support his evidence as against defendant's witnesses, Havens and Harbaugh. Koenig v. Railroad, 173 Mo. 721. The intention and effect of the evidence was to corroborate Moad by his own statements previously made, which is certainly not permissible, and if Moad's statements are inadmissible when made after the accident, they are certainly inadmissible when made before the accident and do not form a part of it. Barker v. Railroad, 126 Mo. 143; Senn v. Railroad, 108 Mo. 142; Richenberg v. Railroad, 161 Mo. 70. (3) Error was committed by the court permitting plaintiff, over defendant's objection, to put in evidence the four pictures taken by photographer Head of the two cars some hours after the accident, as they certainly did not tend to prove or disprove any issue in the case. Their only effect possible would be to prejudice the jury, and were wholly irrelevant to the issue. Also in permitting witnesses to testify as to condition of cars after the collision for the same reasons. Hart v. McNeil, 47 Mo. 525; Nelson v. Preismeyer, 30 Mo.App. 126; Paddock v. Somes, 51 Mo.App. 320. (4) The court erred in permitting plaintiff to amend his petition after the close of his evidence without imposing terms upon him and in overruling defendant's affidavit of surprise and application for continuance on account of the amendment. (a) The variance between the allegations of the original petitions and the proof offered by plaintiff was material and fatal to plaintiff's recovery, and defendant's instruction at the close of plaintiff's evidence to find for defendant should have been given on the original petition and evidence. Chitty v. Railroad, 148 Mo. 64; Crawford v. Aultman, 139 Mo. 262; Cole v. Armour, 154 Mo. 333; Feeback v. Railroad, 167 Mo. 206. (b) For the same reasons the court erred in permitting plaintiff after showing that he jumped from the car to prove the extent and character of his injuries before filing amended petition, as the charge and proof were entirely different. Weil v. Posten, 77 Mo. 284; Thompson v. Railroad, 135 Mo. 217. (c) The amendment of the petition being in a material matter and one necessary to be made before he could recover, the court should have continued the case on defendant's affidavit of surprise. R. S. 1899, sec. 655; Wells v. Sharp, 57 Mo. 56; Fischer v. Max, 49 Mo. 404; Turner v. Railroad, 51 Mo. 509. (d) The amendment made by plaintiff was a material change of the cause of action; on the first petition and evidence he was not entitled to recover and under the amendment defendant should have been granted a continuance. Chitty v. Railroad, 148 Mo. 73; Litton v. Railroad, 111 Mo.App. 144; Hensler v. Stix, 113 Mo.App. 175.

Howard Gray and Patterson & Patterson for respondent.

(1) Notwithstanding it was our opinion that on principle the Fellow Servant Act of 1897 applied to street and interurban electric railways, this case, because of a prior recent decision of our Supreme Court, was tried on the theory that the Act of 1897 did not apply. Where a servant is entrusted with the performance of one of his master's personal duties, he is with respect to that duty a vice-principal or representative of the master, who will be liable to another servant for the negligent performance by the vice-principal of the delegated personal duty, to the same extent as for his own negligence. 12 Am. and Eng. Ency. Law (2 Ed.), 946. The car dispatcher, Havens, having full and absolute control over all the men operating the cars on the road of defendant, was not a fellow-servant but a vice-principal. Smith v. Railroad, 92 Mo. 359; Jones v. Railroad, 178 Mo. 359; Bien v. Railroad, 108 Mo.App. 399; Railroad v. Barry, 25 L. R. A. 389; Tedford v. Railroad, 54 L. R. A. 91; Mast v. Kern, 75 Am. St. Rep. 639; Weldon v. Railroad, 93 Mo.App. 668; Zellars v. W. & L. Co., 92 Mo.App. 107. It has long been established that a railroad company as a master owes to its employees the duty of keeping its road and track in such condition as to secure the safety of its servants who are required to work and be thereon. This duty it can not delegate to any servant high or low so as to escape liability. Schaub v. Railroad, 106 Mo. 87; Lewis v. Railroad, 59 Mo. 495; Hall v. Railroad, 74 Mo. 298; Siela v. Railroad, 82 Mo. 435; Ogelsby v. Railroad, 177 Mo. 130; Dutzi v. Geisel, 23 Mo.App. 689; Steube v. Foundry Co., 85 Mo.App. 647; 12 Am. and Eng. Ency. Law (2 Ed.), 968; Railroad v. Camp, 65 F. 952; Lewis v. Seifert, 2 Am. St. Rep. 631; Hunn v. Railroad, 44 N.W. 502; Crew v. Railroad, 20 F. 87; Hankins v. Railroad, 92 N.Y. 39; Sheehan v. Railroad, 91 N.Y. 342; Slater v. Jewett, 85 N.Y. 62; Darrigan v. Railroad, 52 Conn. 285; Railroad v. Barrie, 23 S.W. 1097; Railroad v. McLallen, 84 Ill. 109; Railroad v. Arispe, 5 Tex. Civ. App. 611; Smith v. Railroad, 92 Mo. 359. (2) Both the conductor and the dispatcher testified that Moad repeated the identical order given him, and therefore what he repeated was the order given, and it was competent to prove what he repeated by the passengers and the motorman. Crowther v. Gibson, 19 Mo. 365; Strode v. Conkie, 105 Mo.App. 12; State v. Gabriel, 88 Mo. 631; Randolph v. Railroad, 18 Mo.App. 609. Where the making of a declaration either oral or in writing and not its truth or falsity is the fact in issue, such declaration is itself the res gestae and is always admissible. 24 Am. and Eng. Ency. Law (2 Ed.), 664; U. S. v. King, 34 F. 314; Railroad v. O'Brien, 199 U.S. 99; Leahy v. Railroad, 97 Mo. 172; Insurance Co. v. Sheppard, 12 S.E. 18; Harriman v. Stowe, 57 Mo. 93; Stevens v. Walpole, 76 Mo.App. 220; State v. Hudspeth, 159 Mo. 178.

OPINION

BURGESS, J.

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, Missouri, and the city of Galena, Kansas, running through the cities of Joplin, Webb City, and Carterville, Missouri; that the railway of 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 employees 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 employees in charge of and operating its said cars to make and maintain a certain schedule of time, to-wit, about fifteen or sixteen 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 employees 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 track 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, Missouri, to Galena, Kansas; that at said time another one of defendant's cars, in charge of employees 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 employees of defendant while engaged in the work of moving the cars over the track of defendant's road, to give orders, by telephone, to employees 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...

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