Garven v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 08 June 1903
• Citation: 100 Mo. App. 617,75 S.W. 193
• Parties: GARVEN v. CHICAGO, R. I. & P. RY. CO.
• Court: Missouri Court of Appeals

75 S.W. 193

100 Mo. App. 617

GARVEN v. CHICAGO, R. I. & P. RY. CO.

Court of Appeals at Kansas City, Missouri.

June 8, 1903.

MASTER AND SERVANT—SERVANTS NOT UNDER MASTER'S CONTROL — INJURIES TO THIRD PERSONS—LIABILITY OF MASTER—PETITION—SCOPE OF RECOVERY—INSTRUCTIONS.

1. The rule that, where a person is injured by the negligence of the servants and agents of a master, the latter is not liable, if at the time such servants are under the control and orders of another, does not apply where the master does not resign full control of the servants.

2. Plaintiff, a fireman on a switch engine belonging to one road, was injured in a collision with one of defendant's trains, on a track belonging to a third road, over whose tracks defendant ran some of its trains under a contract with such third road. There was evidence tending to show that defendant's trains were under the control of the third road while on the latter's tracks, and also evidence that they were run under the joint rules of the latter company and defendant. Held, that a peremptory instruction that plaintiff could not recover was properly refused.

3. The refusal of defendant's request for an instruction submitting the hypothesis of its servants being under the sole control of the other road was harmful error, there being evidence to support the instruction.

4. The petition charged generally that defendant's train was carelessly and negligently run against the engine on which plaintiff was engaged, and further averred that defendant was guilty of specified acts of negligence; the last one being that its servants failed to become aware of the presence of the engine on which plaintiff was riding. Held, that an instruction submitting the question whether defendant's employés became aware of the presence of such engine in time to have enabled them by care to have stopped the train was properly refused.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by Don Garven against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

M. A. Low, W. F. Evans, and Frank P. Sebree, for appellant. C. E. Burnham, for respondent.

ELLISON, J.

The plaintiff was a fireman in the employ of the Chicago & Alton Railway Company, and while on one of its engines, running on the tracks of another road, viz., the Union Pacific Railway Company, it collided with one of defendant's trains, then being run over the Union Pacific track, whereby plaintiff was seriously injured. The plaintiff prevailed in the trial court. The evidence disclosed that the defendant runs its trains west out of Kansas City, Mo., over the tracks of the Union Pacific Railway Company under a contract between them, and that the engine on which plaintiff was riding was a switch engine, engaged in switching, and at the time was on the same track. There was evidence tending to show that defendant's trains, while running out of Kansas City over the tracks of the Union Pacific, were under the control, direction, and orders of the latter company. There was also evidence given, by the general superintendent of the latter company, that such trains were run under the joint rules of that company and the defendant; that is to say, under the rules of that company, adopted by the defendant, and issued by it jointly with that company. Defendant asked a peremptory instruction that plaintiff could not recover.

1. It is undoubtedly true that where some third person is injured by the negligence of the servants and agents of a master, yet if, at the time of the act of negligence, such servants are under the control and orders of another, the master of the servants...