Gray v. Wabash Railroad Company
| Decision Date | 31 December 1913 |
| Parties | SAMUEL GRAY et al., Respondents, v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
REVERSED.
Judgment reversed.
J. L Minnis and Robertson & Robertson for appellant.
Under all the evidence, the court should have directed a verdict for the defendant and the court erred in refusing the defendant's peremptory instructions offered at the close of the plaintiffs' evidence and at the close of all the evidence. (A) The evidence failed to show that Hampton gave any order at all, and if so, there was no evidence it was addressed to the decedent. This was a total failure of proof. (B) And the evidence showed that Hampton and the decedent were fellow servants. Labatt on Master & Servant, sec. 512; McGowan v. Railroad, 61 Mo. 528; Blessing v Railroad, 77 Mo. 410; Sheehan v. Prosser, 55 Mo.App. 569; Shaw v. Construction Co., 102 Mo.App 666, 670-671; Smith v. Foundry Co., 122 Mo.App. 610. And therefore Hampton had no authority to order the decedent to get the hoop and in so doing was acting beyond the scope of his authority and defendant is not liable therefor. Overton v. Railroad, 111 Mo.App. 613. (C) Furthermore, it was not negligence for Hampton to order decedent to get the hoop. 21 Am. & Eng. Ency. Law (2 Ed.), p. 471. (D) The collision of decedent with the post was the direct and proximate result of his own lack of ordinary care. Frauenthal v. Gas Light Co., 67 Mo.App. 1; Coleman v. Land & Lumber Co., 105 Mo.App. 272; Butterfield v. Forrester, 11 East, 60. Sargent v. Railroad, 114 Mo. 348. (E) Decedent's act in colliding with the post was intervening and disconnected from Hampton's order and not the proximate result thereof, so no recovery can be had. Railroad v. Kellog, 94 U.S. 469; Anderson v. Railroad, 70 S.C. 490, 50 S.E. 202; Bridge Co. v. Seeds, 144 F. 605.
H. S. Booth and Barclay, Fauntleroy, Cullen & Orthwein for respondent.
(1) Hampton was the defendant's station agent, entrusted at the time with the master's power of control, delivered to the trainmen the messages which controlled the train's movement and represented defendant, and deceased was subject to his orders, and hence Hampton was a vice principal. Dayharsh v. Railroad, 103 Mo. 576; Smith v. Railroad, 92 Mo. 359; Moore v. Railroad, 85 Mo. 588; Stoddard v. Railroad, 65 Mo. 514; Cox v. Granite Co., 39 Mo.App. 424; Evans v. Railroad, 62 Mo. 49. (2) An employee entrusted with the duty of instructing a young and inexperienced servant has been held to be a vice principal upon the ground that the duty to instruct is that of the master. Wallace v. Standard Oil Co., 66 F. 260; Lebbering v. Struthers, 157 Pa. 312; Ingerman v. Moore, 90 Cal. 410; Newbury v. Getchel, etc., Co., 100 Iowa 441; Minneapolis v. Lundin, 58 F. 525. (3) The age and inexperience of the deceased minor are material elements which should be considered on the issue of contributory negligence. The same standard of care that is applied to an experienced adult cannot be applied to a minor without experience. Obermeyer v. Mfg. Co., 120 Mo.App. 59; Rogers v. Printing Co., 103 Mo.App. 683; Campbell v. Railroad, 175 Mo. 161. (4) The action of the deceased must be judged in the light of the circumstances as they appeared to him at the time, and the order and its confusing effects are material factors which would cause an ordinarily prudent person to act as the deceased acted. Kleiber v. Railroad, 107 Mo. 147; Ephland v. Railroad, 57 Mo.App. 147; Dellemand v. Saalfeld, 175 Ill. 310. (5) Obedience to an order involving personal danger cannot be declared negligent as a matter of law, where, when as in this case, the danger was not so glaring as to clearly indicate danger to a prudent person. Schroeder v. Railroad, 108 Mo. 323; Stephens v. Railroad, 96 Mo. 207. (6) The defendant was guilty of putting an inexperienced boy at a dangerous employment against the will and contrary to the express orders of his father, and there was no valid contract of hire for this particular work as between the plaintiffs and the defendant, and the relation of master and servant between the boy and the defendant did not exist. In such circumstances the defendant would be liable for the death of the boy, unless it should be shown that his injury and death were the result of his own willful act. Coleman v. Land & Lumber Co., 105 Mo.App. 254; Union P. Co. v. Fort, 17 Wall. 553; Coal Co. v. Haenni, 146 Ill. 614; Cole v. Railroad, 71 Wis. 114; Egan v. Lumber Co., 94 Wis. 137; Mann v. Print Works, 11 R. I. 152; Robertson v. Cornelson, 34 F. 716; Railroad v. Bayfield, 37 Mich. 205; Foley v. Horseshoe Co., 115 Cal. 184; Erickson v. Railroad, 83 Mich. 281; Orman v. Mannix, 17 Colo. 564; Coal Co. v. Gaffney, 119 Ind. 455; Kehler v. Schwenk, 151 Pa. 519; Jones v. Cotton Mills, 82 Va. 140; Newbury v. Lumber & Mfg. Co., 100 Iowa 441; Beet-Sugar Co. v. Hight, 59 Neb. 100; Railroad v. Newman, 64 S.W. 790.
This is an action by plaintiffs, husband and wife, for the death of their minor unmarried son, alleged to have been caused by the negligence of the defendant railroad company. Plaintiffs recovered and the defendant prosecutes the appeal.
This is the second appeal of the case. The opinion of this court on the former appeal will be found under the style of Gray v. Railroad, in 157 Mo.App. 92, 137 S.W. 324. Plaintiffs' son at the time of his death was about eighteen years and eight months of age, and resided with his parents in Centralia, Missouri. It appears that a written contract of employment had been entered into between plaintiffs, the parents of the deceased, and the defendant, the latter's regular form of employment contract being utilized for such purpose; but it appears that the deceased's duties were to act as a messenger for the Western Union Telegraph operator at this station, who was also employed by the defendant to handle its train messages. Defendant's station agent also paid him a small sum per month for sweeping the station every morning.
On behalf of plaintiff there was testimony to the effect that there was an oral agreement between the boy's father and defendant's station agent, to the effect that the boy was to "have nothing to do with the train service whatever," and would not be required to work about the trains.
At the time of the injury and death of plaintiffs' said son, the defendant maintained at this place a long platform extending some three hundred feet along and north of its railway tracks, in front of its station, and which was perhaps about sixteen feet in width. The tracks extended nearly east and west. In this platform stood a semaphore pole about twenty-five feet high, at the top of which were arms to be used for signalling purposes. It appears that this post stood nearly five feet from the outer or south edge of the platform, and about eleven feet from the depot building, directly in front of the telegraph office.
On September 28, 1908, an eastbound freight train of defendant approached and was passing the station and platform at this place at a rate of speed that is estimated at from six to ten miles per hour. It appears that orders were to be passed to the trainmen on this train by means of wire hoops; it being customary to deliver orders in this way to passing trains, the same being fastened to the hoops and the latter held aloft in order that someone on the train might catch them by running his arm therethrough, the hoops being thrown off upon the platform or premises near-by after the orders had been taken therefrom.
Upon the day in question, one Hampton, appellant's agent, was standing upon the platform about one hundred feet west of the semaphore pole, with two of these hoops to be used to thus transmit orders to the crew of the passing freight train. Standing near him were the deceased, one McBride who was the baggage man at this place, and one Montgomery. It appears that Hampton held one of the hoops aloft and it was caught by the brakeman on the train who stood in the "gangway" back of the engine; and plaintiffs' witnesses testified that as this was done, and while Hampton was looking toward the train, he said: "Get the hoop." The testimony is that this order was spoken in an ordinary tone of voice, with nothing to indicate to whom it was directed. Deceased, however, apparently understood that it was directed to him. He thereupon ran east along the platform after the hoop which was then in the hands of the brakeman on the passing train, who was taking the order therefrom. Deceased thus ran, following the train, the aforesaid distance of about one hundred feet, when he collided with the semaphore pole, whereby he was thrown against and fell beneath the passing train and was killed.
When the case was here before, it was reversed for the reason that plaintiffs undertook to make a case under section 5425, Revised Statutes 1909, and this court held that the petition stated no cause of action under that section. Upon motion of respondents there, the judgment of reversal outright was modified, and the cause was reversed and remanded for further proceedings.
Learned counsel for respondents now contends that this court, on the former appeal, adjudged that plaintiffs' case fell within section 5426, Revised Statutes 1909, and that, when properly presented, the case was one for the consideration of the jury, and that such is now the law of this case. A reading of the former opinion, however, will readily disclose that nothing was there adjudicated except that plaintiffs had no cause of action under section 5425, supra, under which plaintiffs were then attempting to proceed; and that the case...
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