Evans v. Atlantic & Pacific R.R. Co.
| Decision Date | 31 January 1876 |
| Parties | WILLIAM C. EVANS, Plaintiff in Error, v. THE ATLANTIC AND PACIFIC RAILROAD COMPANY, Defendant in Error. |
| Court | Missouri Supreme Court |
Error to St. Louis Circuit Court.
Thomas C. Fletcher, for Plaintiff in Error.
The rule exempting the master from damages for injury to the servant by reason of negligence of a fellow-servant, applies only to those who are strictly fellow-servants in the same department of service, and not where the departments are so far independent as to have no privity with each other. (4 Metc., 59.)
The Rohback case, (43 Mo., 187) is inapplicable here. His business was on the track, and he accepted the employment with the attendant risks as a track repairer. Evans was not paid for any risks, and his acceptance of them cannot be implied from the contract of his employment. As a wayfarer his presence on the track was not connected with the relation of master and servant, and he would therefore be entitled to maintain his action. (Gillshannon vs. Stony Brook R. R. Co., 10 Cush., 231; Fort vs. U. P. R. R., 2 Dill. C. C., 263; Albro vs. Agarvam Canal Co., 6 Cush., 76.) Were the case otherwise, the liability of the company would not be altered, since his injury was the immediate result of a violation of law on its part, in failing to ring the bell and sound the whistle.
It cannot avoid its responsibility even to an employee un der such circumstances, where the injury results from personal negligence and the violation of an express statute. (24 N. Y., 413; 6 Ky., 579; 46 Mo., 170; 59 Penn. St., 239.)
J. N. Litton, for Respondent.
The plaintiff and the engineer were fellow-servants, because they were both engaged in the common labor of transporting freight to and from that station. The same officers employed and were authorized to discharge them both. The special rules of the company made them fellow-servants. .)
The employment of plaintiff by defendant was at the time of the accident in full force and effect. The plaintiff was employed by the month and not by the day. The plaintiff had no special hours of service, nor could he claim that his labors for the day were over. In fact he ought to have been on the ground superintending the switching and fastening the switch as required by the rules. And it was incidental to plaintiff's occupation to go to and from his place of labor, and in doing so, to run the hazard of being injured by passing trains. .)
The plaintiff was not within the provisions of section 38, because the crossing or pathway at the western end of the depot, in the line of which he was standing at the time of the accident, was not a “traveled public road or street,” and he was three hundred feet west of the crossing east of the depot, which was a country road. (See 6 R. I., 212; 42 N. Y., 468.)NAPTON, Judge, delivered the opinion of the court.
The petition in this case alleged that on or about the 27th of September, 1872, between three and four o'clock. P. M., the plaintiff was crossing the track of defendant where the same was laid along and across a public street in the town of Cuba, in the county of Crawford, and at a point on said track, within 80 rods from the place where said railroad crossed a traveled public street of said town, and at a point within the limits of said town, less than 80 rods from the place where said railroad crossed a certain traveled public road and street of said town, and while crossing said track, the defendant, by carelessness, negligence, etc., and by their neglect to observe the requirements and regulations in such cases made by the statute, and by their unlawful neglect to ring the bell at a distance of at least 80 rods from the place where said railroad crossed said traveled road, or to sound a steam whistle, etc., contrary to the provisions of the 38th section of the General Statutes, ch. 63, unlawfully and wrongfully ran a car against the said plaintiff and knocked him down, etc., and injured him so as to require amputation of his leg, by which, etc.
The answer denies, that the point where plaintiff was crossing was a public street; denies that the place was within 80 rods of a traveled highway; denies negligence; denies the failure to ring the bell as charged; in short, denies all the allegations of the petition, and asserts that plaintiff proximately contributed to the injury received, and that he was a station agent, and a servant or agent of defendant.
The replication admits that plaintiff was station agent, but alleges that this business only occupied a few hours of his time, and that, at the time of the injury complained of, he was not acting in that capacity, and was attending to his own private business, and denies that he contributed to the injury received.
At the trial, the plaintiff testified that he lived at Cuba; that he was struck by a railroad car, on the 28th of September, 1873, at Cuba; that the wheel of the car passed over his leg. He had been across the track to get his mail at the post-office; did not see the cars approaching, nor hear them, and was struck by a freight train. This train was the one which hauled all the freight that was shipped at the station or to the station. He had at the time of the accident just left the depot and had crossed the track to go to the post office, and was returning to his house (which was on the same side of the track as the depot) to get his dinner, when he was struck. He did not look to see whether any cars were approaching when he stepped on the track. He stepped on the track right in front of the cars. The men on the train could not see him; the cars were moving slowly. He jumped on the track on which the train was, from behind a box car standing on the side track.
This witness stated further, that there were two principal crossings of the road in the town of Cuba, one on the east, and one on the west of the depot. He was struck by the cars in crossing the western one. No bell was rung nor whistle sounded. The place where he was struck is called a street and it was sixty feet wide, and more people who came to the depot, came over that place than any other crossing.
It is impassable for wagons, being five or six feet below the surface, and a wagon could not cross there. People on horseback would cross there. The crossing had never been worked. The road crossing the track east of the depot is a county road, the two crossings being about 260 feet apart. The eastern crossing was used by wagons.
This witness was at the station when the local freight train arrived, and remained there until he saw the engine, and some cars go on west. He thought the whole train had gone and then went from the depot to the post office. But the witness learned afterwards that the whole train had not left, and most of the cars remained at the station, and the engine took these cars out of the train and went west up to the “frog” for the purpose of leaving two of them at the stock yard, for some stock that was to be shipped at Cuba. The plaintiff had ordered the cars to be brought from Franklin for this stock. The engine had left these two cars on the side track and was backing down with one box car on the main track, to couple on to the rest of the train which remained east of the depot, when plaintiff was struck. This witness, who is plaintiff, jumped on the main track from the side track, from behind one of these cars left there. The engine and some of the cars he had seen go on westward before he left the station and thought that the whole train had gone on. The engine and train that struck him was backing down and going eastward.
This witness was station agent at Cuba. The duties occupied only a part of his time. His salary was forty dollars per month. He was general agent of defendant at that point. He was defendant's agent for the sale of land at that point. He had no other regular business except station agent or land agent.
The attention of the witness was then called to certain rules of the company, which he conceded had been received by him. These were:
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