Haas v. St. Louis & S. Ry. Co.

• Decision Date: 04 April 1905
• Citation: 90 S.W. 1155,111 Mo. App. 706
• Parties: HAAS v. ST. LOUIS & S. RY. CO.
• Court: Missouri Court of Appeals

90 S.W. 1155

111 Mo. App. 706

HAAS v. ST. LOUIS & S. RY. CO.

St. Louis Court of Appeals. Missouri.

April 4, 1905.

1. CARRIERS—CARRIAGE OF PASSENGERS—WHO ARE PASSENGERS—EMPLOYéS OF CARRIERS.

A laborer employed to work on the tracks of a street car company, who travels on the company's car on a laborer's free pass to the place where he is ordered to work, is a passenger, entitled to the protection of a passenger.

2. SAME—INJURY TO PASSENGER—NEGLIGENCE —EVIDENCE.

In an action against a street car company for injuries to a passenger, proof that one of the company's cars was allowed to run into the one on which plaintiff was a passenger is prima facie proof that the company was guilty of actionable negligence.

3. SAME.

In an action against a street car company for injuries to a passenger in consequence of a car running into the car on which plaintiff was riding, the testimony of the motorman that he was unable to control the car on account of the slippery condition of the track, caused by loose leaves that had fallen on it and had been allowed to remain, shows negligence in failing to keep the track in a reasonably safe condition.

4. DAMAGES—ASSESSMENT FOR PERSONAL INJURY —INSTRUCTIONS.

An instruction, in an action for personal injuries, authorizing a recovery for pain which plaintiff has endured and "may" endure in the future by reason of the injuries, is erroneous as ignoring the bounds of reasonable certainty.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Action by Louis Haas against the St. Louis & Suburban Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

In 1903 plaintiff was in the employ of defendant as a laborer on its tracks. On November 5th plaintiff was working on defendant's tracks, with a gang of other laborers, at Kirkwood, from which place he was ordered by the foreman to take his tools and go to De Hodiamont, to the office of the defendant company. By direction of the foreman, plaintiff boarded one of defendant's cars and was carried to Clayton, on a laborer's free pass, where he was ordered to leave the car and board another one of defendant's cars on another track, to be carried to De Hodiamont. He left the car as ordered, walked over to the other track, and there boarded a car to be carried to De Hodiamont. Just as he got on to the rear platform, the car was bumped into by another one of defendant's cars, and, by force of the concussion, plaintiff was thrown backward off the platform onto the ground, falling on his back, and, as the evidence tends to show, was seriously, and perhaps permanently, injured in his back and crippled in his right arm. The suit is to recover for the injuries thus occasioned. The answer was a general denial. The verdict was for the plaintiff for $2,000. Defendant appealed.

Jeff Chandler and J. Lionberger Davis, for appellant. R. H. Stevens, for respondent.

BLAND, P. J. (after stating the facts).

1. The motorman whose car bumped against the one plaintiff was on testified that the track was covered with loose leaves and was so "slick" he was unable to control his car and stop it in time to prevent the collision. He is corroborated by several other witnesses in respect to the slippery condition of the track. The petition alleged that plaintiff boarded the car at Clayton, to be carried as a passenger to the city of St. Louis. The contention of appellant is that he was not a passenger, and for this reason he was not entitled to recover under the allegation of being a passenger. In Vick v. Railroad, 95 N. Y. 267, 47 Am. Rep. 36, it is held that where an employé of a railroad travels to and from his work on the cars of the company, and his transportation constitutes part of the contract of service, while so traveling he is an employé, not a passenger, and hence the company is not liable for an injury to him through the negligence of a co-employé. In Higgins v. Railroad, 36 Mo. 418, it is held that a railroad employe riding in the baggage car with other employés, without the payment of fare, though not traveling in the master's service, was not a passenger. In Louisville & N. R. Co. v. Scott's Adm'r, 56 S. W. 674, 22 Ky. Law Rep. 30, 50 L. R. A. 381, it is said: "A station agent traveling to his home in another town, without paying fare, several hours after his duties for the day have ceased, does not, by reason of his employment by the carrier as such agent, assume the risk of injury through the negligent operation of the train." In Chicago & Alton R. R. Co. v. Keefe, 47 Ill. 108, where a laborer upon a construction train, at work under the orders of the conductor in charge of such train, was injured in consequence of the moving of the train by the engineer, also in pursuance of the order of the conductor, but without giving the preliminary signal, as required by the rules of the company, the laborer was injured, it was held that the master was not liable, on the ground that the laborer and the engineer were fellow servants. In Kumler v. Railroad, 33 Ohio St. 150, it is said: "Where a railroad company, engaged in ballasting its road, employed a hand to assist in loading and unloading a gravel train, and in the execution of this service it was necessary for him to ride on the train from the gravel pit to the place of unloading; the train being run under the direction of a conductor, and said hand having nothing to do with its management. Held, that such hand, while riding on the train, was a mere employé, and did not assume the character of a passenger, that he and the engineer of the train were engaged in a common service, and that, as he was not under the control or subject to the orders of the engineer, the railroad company cannot be held liable for negligence of the engineer resulting in his death, if it was not guilty of negligence in selecting the engineer." The Keefe and Kumler Cases, and others of the same type, proceed upon the common-law rule as early adopted in England, and followed in some of the state courts, that all servants employed by a common master and engaged in the same general business are fellow servants, irrespective of the diversity of the business. In the earlier decisions of the Supreme Court of this state this rule was rigidly adhered to, and was applied in McDermott v. Railroad, 30 Mo. 115, wherein it was held that bridge builders and brakemen were fellow servants, in Rohback v. Railroad, 43 Mo. 187, in which it was held that a track repairer and trainmen were fellow servants, and in Moore v. Railway, 85 Mo. 588, where it was held that a car repairer and a crew of an engine, which ran into the car the repairer was working on, were fellow servants.

If this rule had been adhered to by the Supreme Court, the Moore Case would be decisive of the case in hand, and we would, without hesitation, hold that plaintiff and the motorman of the car which ran into the one upon which plaintiff was standing were fellow servants, and that plaintiff could not recover. But the doctrine of departmental service has found lodgment in the jurisprudence of this state by the following cases: Dixon v. Railroad, 109 Mo., at page 423, 19 S. W., at page 414, 18 L. R. A. 792, where Barclay, J., said: "We think it clear that where a common employer carries on two enterprises, as variant in character as those here considered, each under separate superintendence, the employes at work in each cannot justly be regarded as fellow servants of the employés in the other, within the meaning of the rule of exemption." Relyea v. Railway, 112 Mo. 86, 20 S. W. 480, 18 L. R. A. 817, where, speaking of servants of a common master, Black, J., said: "They are fellow servants who are so related and associated in their work that they can observe and influence each other's conduct and report delinquencies to a common correcting power." In Card v. Eddy, 129 Mo.,...