Gibson v. Pacific R.R. Co.

• Decision Date: 31 March 1870
• Citation: 46 Mo. 163
• Parties: GEORGE W. GIBSON, Respondent, v. THE PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

46 Mo. 163

GEORGE W. GIBSON, Respondent,

v.THE PACIFIC RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Whittelsey, for appellant.

I. The master is not liable to his servant for the acts of a fellow-servant, and the difference in grade of employment does not alter the rule. (Wilson v. Merry, 1 L. R. H. L., Sc., 326; Tarrant v. Webb, 37 Eng. L. & Eq. 281; Priestly v. Fowler, 3 M. & W. 1; Wigmore v. Jay, 5 Exch. 354; Hutchinson v. York, etc., R.R., 5 Exch. 343; Wiggett v. Fox et al., 36 Eng. L. & Eq. 486; 11 Exch. 832; Scott v. Mayor, etc., of Manchester, 38 Eng. L. & Eq. 477; Hard, Adm'r, v. Verm. Car. R.R., 3 Verm. 473; Walles v. S. E. R.R. Co., 3 Hurl. & Co. 102; Faulkner v. Erie R.R. Co., 49 Barb. 324; Ryan v. Fowler, 24 N. Y. 410; Keegan v. West, 8 N. Y. 175; Marshall v. Stewart, 33 Eng. L. & Eq. 1; Patterson v. Wallace, 28 Eng. L. & Eq. 48; Wright v. N. Y. Cent. R.R., 25 N. Y. 562; 17 N. Y. 153; Russell v. Hudson River R.R., 17 N. Y. 134.) The rule applicable to injuries caused by negligence of fellow-servants is declared in Rohback v. Pacific R.R., 43 Mo. 187; McDermott v. Pacific R.R., 30 Mo. 115; Little Miami R.R. v. Stevens, 20 Ohio, 415; Faulkner v. Erie R.R., 49 Barb. 324.

II. The first instruction asked by and given for the plaintiff laid down an erroneous rule of law, as applicable to the facts of the case, for the guidance of the jury. There was no evidence whatever that the defendant--that is, its board of directors or its superintendent--knew of this defect in the repair of the spring; and to charge that “the defendant might have known, by the exercise of reasonable care and diligence,” is to require a personal supervision, and forbid the employment of servants and agents without accepting a personal responsibility for their acts--a duty the law does not impose. (See opinions of Lord Chancellor and of Lords Cranworth and Chelmsford in Wilson v. Merry et al., supra; Bartonshill Coal Co. v. Reid, 3 McQueen, 282, cited in Wilson v. Merry.)

III. The defendant was not compelled to warrant the perfection of its machinery and cars; it could only use care and diligence to furnish complete machinery. The burden of proof was upon plaintiff to show that the company had knowledge of the defect. He alleged that fact in his petition, and the only evidence in proof of the allegation was that there was a defect. (Mobile & Ohio R.R. Co. v. Thomas, 8 Ann. Law Reg., N. S., 154; Wilson v. Merry et al., supra; Tarrant v. Webb, 37 Eng. L. & Eq. 281.) The qualification “that defendant might have known” wholly destroys the effect of the instructions given for the defendant, and the instructions put the case to the jury on an erroneous hypothesis as to the facts.

Terry & Terry, and Stewart & Wieting, for respondent.

I. A master is liable to his servants for his negligence. (Snow v. H. R.R., 8 Allen, 445; Keegan v. Western R.R., 4 Seld. 175; Noyes v. Smith, 28 Verm. 62; Ryan v. Fowler, 24 N. Y. 413; Wright v. N. Y. Cent. R.R., 25 N. Y. 565; Marshall v. Stewart, 33 Eng. L. & Eq. 7.)

II. The degree of negligence is to be determined by the situation and surroundings of the business of the master, and the occupation of the servant. If the danger to which the master exposed his servant is great, the vigilance of the master is proportionately increased. The degree of care required is higher when life and limb are endangered. (Cayzer v. Taylor, 10 Gray, 274; Loomis v. Terry, 17 Wend. 496; Castle v. Duryea, 32 Barb. 480; Morgan v. Cox, 22 Mo. 373.) The position in which the defendant was placed was dangerous in the extreme, and the care and vigilance of the defendant were correspondingly increased. As to what constitutes a dangerous occupation, see 36 Mo. 23, 25, 354.

III. The master is bound to place in the hands of his servants, as the law declares, good and sound machinery, and use all reasonable precaution for the safety of his employees. (Ryan v. Fowler, 24 N. Y. 420; Buzzell v. Laconia Manuf. Co., 48 Maine, 113; Hallower v. Henley, 6 Cal. 209; Noyes v. Smith, 28 Verm. 59; Cayzer v. Taylor, supra; Frazer v. Penn. R.R., 38 Penn. St. 104; McDermott v. P. R.R., 30 Mo. 115.)

IV. The principle, that the master is not responsible for injuries inflicted on one servant by another, is applicable only when the injury happens without any fault or misconduct, such as carelessness and neglect in the master, either in the act which caused the injury or the person who caused it. (Perry v. Marsh, 25 Ala. 659; Patterson v. Wallace, 28 Eng. L. & Eq. 48; Marshall v. Stewart, 33 Eng. L. & Eq. 1; Mad River & L. E. R.R. v. Barber, 5 Ohio St. 541; Fifield v. Northern R.R., 42 N. H. 225.)

V. The effect of the fourth instruction would have been, if allowed, to relieve the master of all liabilities unless he had knowledge of the condition of the machinery used by him. This, as a proposition of law, may be good in cases where the master had immediate control of his affairs; but as a proposition of any force in cases where the charge and oversight of the business are delegated to other parties, as must be done in corporations, it has no weight. The board of directors had delegated their power of representation to their superintendent, and his acts must be held to be the acts of the board. One to whom the employer commits the charge of his business, with power to choose his own assistants, and to control and discharge them as freely as the principal himself could, is not a fellow-servant with those who are employed under him, and the principal is answerable to all the under-servants for the negligence of such managing assistants, either in his personal conduct within the scope of his employment, or in his selection of other servants.

VI. The plaintiff's instructions were properly allowed, and for the reason that they contain what we believe the law in this case. It was the want of care which constituted the negligence. The placing defective machinery upon its road by the defendant exhibited such a want of care as to render it liable. We concede that a knowledge of the defective condition of the machinery is one of the more certain elements which unite to constitute a case of neglect; but to this proposition there is the alternative proposition of equal weight, viz: that where proof is given that the master is ignorant of the defective condition of the machinery he uses, through his own negligence and want of care, he is equally culpable. He must either know or ought to know the condition of the implements and accommodations he furnishes his servants. (Wright v. N. Y. Cent. R.R. Co., 25 N. Y. 566; Keegan v. W. R.R., 4 Seld. 175; Hayden v. Smithville Manuf. Co., 29 Conn. 548; Marshall v. Stewart, 33 Eng. L. & Eq. 1; Farwell v. B. & W. R R. Co., 4 Metc. 49; Hord v. Vermont & C. R.R. Co., 32 Verm. 473; Buzzeli v. Laconia Manuf. Co., 48 Maine, 113; Fifield v. Northern R.R., 42 N. H. 225.)

WAGNER, Judge, delivered the opinion of the court.

This was an action for damages brought by the respondent, an employee of the appellant, a railroad company, against the company, on account of injuries received through the negligence and carelessness of the company in using upon its road defective and dangerous machinery. The respondent was a brakesman on the road, and, as such, it was his duty to assist in coupling cars to form a train, and the case shows that he was a careful and prudent man. While acting under orders of the conductor, the train was backing on a switch to take on an additional car, and, while engaged in inserting the link in the drawhead, the cars came so closely together that in withdrawing his hand it was caught between the deadwoods or buffers, and smashed so that he lost three fingers. There was evidence going to show that the officers of the road, and the master mechanic who had charge of the road and repair shops, were skillful and competent men, but it most clearly appears that the coupling apparatus, as used on the cars which the respondent was coupling, was dangerous and defective, and that the company was engaged in altering the cars in which a like defect existed, to make them conform to a better standard and consist with greater safety.

Judgment was given for the respondent in the court below, and the case is appealed here. The objections are to the action of the Circuit Court in giving and refusing instructions. For the respondent the court gave two instructions. The first was as follows: “If the jury find from the evidence in this case that the apparatus used for coupling the cars by which the plaintiff was injured, or either of them, from its make and construction, was unsafe, and the defendant knew thereof, or might have known thereof by the exercise of reasonable care and diligence, they are instructed that the defendant is liable to plaintiff for any injuries he has received in consequence of such defect in the make and construction of such apparatus, after it was known or ought to have been known by defendant, if they further believe that plaintiff was exercising ordinary care and prudence at the time he received the injury, and did not know of the defect in said apparatus, and that the same was not due to the carelessness of any fellow-servant of the plaintiff.” The second instruction related to the measure of damages, and no point is made upon it in this court.

The appellant asked five instructions, three of which were given and two refused. The following were given:

“1. Although the car by which the plaintiff was injured was defective by having too short a spring, yet if the directors and superintendent of said railroad were ignorant of the defect of said car, and used due care and diligence in procuring its cars, and selecting careful and competent servants to construct and procure said cars, then the defendant is not liable.

2. If the Pacific Railroad selected competent and skillful subordinates and servants to supervise, inspect, regulate, and control its freight...