Fellhauer v. Quincy, O. & K. C. R. Co.
| Decision Date | 24 May 1915 |
| Docket Number | No. 11493.,11493. |
| Citation | 177 S.W. 795,191 Mo. App. 137 |
| Parties | FELLHAUER v. QUINCY, O. & K. O. E. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Grundy County; G. W. Wanamaker, Judge.
Action by Ferdinand Fellhauer, prosecuted after his death by Eliza Fellhauer, administratrix, against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Hall & Hall, of Trenton, and J. G. Trimble, of Kansas City, for appellant. C. G. Williams, of Jefferson City, and Platt Hubbell and Geo. H. Hubbell, both of Trenton, for respondent.
Originally, this was a suit by Ferdinand Fellhauer for damages claimed to have been received as the result of the alleged negligent striking and consequent sudden movement of a box car in which he was arranging articles of personal property for shipment over defendant's road. He claimed he was standing on a box in the car, when it was suddenly and without warning struck and moved a short distance by a local engine, whereby he was thrown to the floor and severely injured. Before his case came to trial, Fellhauer died suddenly of apoplexy, and the cause was revived in the name of his administratrix, it being alleged in the amended petition that the injuries he is said to have received did not cause his death. A trial was had upon said amended petition, and a verdict was rendered in plaintiff's favor. Thereupon defendant appealed.
The alleged injury occurred at the defendant's station in the town of Osborn, Mo., where Fellhauer and his son Frank lived and conducted a blacksmith shop. They desired to move to the town of Coffey, also on defendant's line, and applied for a freight car in which to ship their household goods and blacksmith tools. The agent told them he would have a car there for them in a few days.
The station at Osborn is one used jointly by the defendant and the Chicago, Burlington & Quincy Railroad. These two lines are parallel and run east and west at this point. The Burlington runs south of the depot, and the defendant's railroad runs north of it. The house or team track, on which cars stood when loaded or unloaded, was a track which left the main line of the Burlington at a switch east of the depot, curved to the north as it went west until it connected with the main line of the defendant at a point just north of the depot, and then, passing the depot, it curved south again and joined the Burlington at a switch west of the depot. Defendant had two side tracks north of its main line, known as storage tracks No. 1 and No. 2, the latter lying north of the former. They connected with defendant's main line at a switch east of the depot and, after running parallel with the main line past the depot, again joined the main line at a switch some distance west of the depot. A short stub, known as the coal track, left storage track No. 1 near the east end thereof and ran west for a short distance and stopped between the main track and said storage track No. 1. The Fellhauers' residence was a short distance north and a little west of the west swatch where the two storage tracks merged into one and joined the main line west of the depot. Their blacksmith shop was a shot distance north and slightly west of the point where the side track left the main line at the switch east of the depot and divided into" said storage tracks No. 1 and No. 2.
When the car intended for the Fellhauers' use came, it was placed on the house track a short distance west of the depot. At this place it was between the main lines of the two railroads. It seems that the dray team the Fellhauers were going to use was wild and afraid of trains, and when the location of the car was ascertained, Frank Fellhauer went to Deems, the station agent, and told him he couldn't get to the car where it was setting. Deems told him to get Booth, the engine hostler, to set the car where it would be convenient. (Osborn was a division point, and freight engines were tied up there and placed in the hostler's care, whose duty it was to clean them, keep them properly coaled, and with fire up, ready to go out whenever the train crew came to take out a train.) Thereupon Frank Fellhauer went to Booth, the hostler, and he said he would have his helper, Roy Kirchner, who was a boy about 16 or 17 years of age, to do it. Frank Fellhauer went to look for Kirchner, and finally Kirchner came in and said Booth had already told him to spot the car wherever the Fellhauers needed it.
Kirchner took the freight engine tied up at that station and moved the car to a point on the main line just west of the west switch and opposite the Fellhauers' residence. And here the Fellhauers carried their household goods down and put them into the car without the use of the dray. After the household goods were loaded, Kirchner then moved the car to a point on and near the east. end of storage track No. 2, opposite the blacksmith shop. Then the tools and blacksmith outfit were hauled by the dray from the shop and loaded into the car. After setting the car at this spot. Kirchner uncoupled the engine and took it over on storage track No. 1, where he supplied it with coal and then ran it back on to track No. 2, the proper storage place for it when it was cleaned and coaled, ready for the crew to take it out on the road. In order for him to get the engine far enough on track 2 to allow cars to pass onto track 1, it was necessary to place the Fellhauer car further west, and the boy pushed it back with the engine. In doing so, he struck the car hard enough to move it 25 or 30 feet slightly upgrade, notwithstanding it was "chocked" at both ends by pieces of railroad ties placed under the wheels. Ferdinand Fellhauer as stated, was in the car and was thrown down and injured by the impact of the engine against the car.
It is very earnestly and strenuously contended that plaintiff is not entitled to recover, 'and that the instructions in the nature of demurrers to the evidence should have been given. Defendant's view is that the train crews were the only employs whose duty it was to "spot" cars, that is, to place them at any particular place for loading or unloading; that tracks 1 and 2 were used only as storage tracks where cars were set by the train crews to be taken out whenever the proper train left; that cars were never loaded or unloaded on these tracks, but, when placed there, they were ready to go out whether loaded or empty; that no one but the train crews had any authority to do any switching or moving of cars from place to place at the station, and that neither the hostler nor his assistant, called the hostler helper, had authority to switch cars, but their duties were solely to care for, clean, and coal the engines tied up there and, when in proper trim and ready to go out, to. store the engines on said storage track 2; that Deems, the agent, had no power to authorize the spotting of cars anywhere except on the house or team track, and that the Fellhauers, in getting the car spotted on the main line in front of their residence and afterwards on storage track 2 in front of the blacksmith shop, were having Kirchner, the boy, to do something outside of the scope of his duties and in violation of the master's rules; and that, as the alleged injury occurred as a result thereof, there was no liability on the part of the master.
It is by no means certain that there is not sufficient evidence from which the jury could find that the hostler helper was acting within the scope of his duties in spotting the car in front of the residence and afterwards in front of the shop. The agent testified that it was usual and customary for the railroad company to spot a car and set it at a place where the shipper could conveniently load it. Of course this doubtless should be interpreted to mean that the car would be put at any convenient place on the house track, the one set apart for that purpose, and not at any point about the station yards or on the main line outside. But the agent said it was his duty to see that the car was set at some proper place for it to be loaded; and Frank Fellhauer said the agent told him to get Booth, the hostler, to put the car where it would be convenient, and that he saw Booth, and he said he would have Kirchner, the hostler helper, to do it. Booth does not deny this. Kirchner afterwards told Fellhauer Booth had directed him to spot the car wherever they needed it, and testified that he used the engine and moved the car at Booth's request. There was evidence that Booth was foreman over the engines tied up at that station, and boss over the men who helped him; that ordinarily if there were cars to be coupled, or cars to be spotted, Booth would do it if he was there, or he would leave orders to the men who helped him to spot them, and that Kirchner had piloted the engine a number of times and "handled it quite a bit." So that, taking the evidence in its most favorable light for the plaintiff, as we must do in view of the verdict, it shows that Deems had authority to have cars spotted, that he authorized Booth to spot the car where convenient for Fellhauers, and that Booth had his helper to do it. The most that can be said in defendant's behalf concerning this view of the testimony is that the defendant's servants, in spotting the car, put it at a place other than on the track used for that purpose. But does this fact put the act outside the scope of their employment in the sense the law uses that phrase in fixing the liability of a master? If spotting a car was one of the duties of the servant, then the fact that he spotted it at a place other than where they were ordinarily spotted would not relieve the master of liability. 20 Am. & Eng. Ency. of Law (2d Ed.) pp. 163, 164, 167, 170. If the spotting of cars was one of the duties intrusted to a servant, then his master is not relieved of liability merely because the servant spotted the car...
To continue reading
Request your trial