Haas v. St. Louis & Suburban Railway Company
| Decision Date | 04 April 1905 |
| Parties | HAAS, Respondent, v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. John W. McElhinney Judge.
In 1903 plaintiff was in the employ of defendant as a laborer on its tracks. On November fifth plaintiff was working on defendant's track with a gang of other laborers at Kirkwood, from which place he was ordered by the foreman to take his tools and go to DeHodiamont 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 DeHodiamont. He left the car as ordered, walked over to the other track and there boarded a car to be carried to DeHodiamont. 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 on to 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 two thousand dollars. Defendant appealed.
Judgment reversed and cause remanded.
Jefferson Chandler, John Lionberger Davis for appellant.
(1) The instruction, offered by defendant at the close of plaintiff's case, in the nature of a demurrer to the pleadings and evidence, should have been given. The petition alleged that plaintiff was a passenger, and of this allegation there was a total failure of proof. 2 Labbatt, p 1830, and note; Higgins v. Railway, 36 Mo. 418; Haynes v. Trenton, 108 Mo. 123, 18 S.W. 1003; McCormick v. Traction Co., 154 Mo. 191, 55 S.W. 252; Raming v. Railway, 157 Mo. 477, 57 S.W. 268; Pat Mo. Code Pl., sec. 181; Whipple v. Cooper Assn., 55 Mo.App. 554.
(2) Plaintiff's sole right to recover, if he has any, is based on the alleged negligence of the servants of defendant in permitting the car under their control to bump into the car on which plaintiff was mounting. The defendant is not liable to plaintiff for the alleged negligence of these servants. Cooley on Trusts, secs. 543-544 and cases cited on p. 642; Gilman v. Railway, 10 Allen (Mass.) 233; O'Brien v. Railway, 138 Mass. 387; McGuire v. Shattuck, 160 Mass. 47; Vick v. N. Y., 95 N.Y. 267; Rohback v. Railroad, 43 Mo. 187; McGowan v. Railroad, 61 Mo. 528; Higins v. Railroad, 104 Mo. 413, 16 S.W. 409; Parker v. Railroad, 109 Mo. 3, 19 S.W. 1119; Grattis v. Railroad, 153 Mo. 380, 55 S.W. 108; Morgan v. Railway, L. R. 1, Q. B. 149; Feltham v. England, L. R. 2, Q. B. 33; Wilson v. Merry, L. R. 1, H. L., secs. 326, 336; Railroad v. Hambly, 154 U.S. 349; Railroad v. Peterson, 162 U.S. 346; Railroad v. Conroy, 175 U.S. 323; Railroad v. Dixon, 194 U.S. 363.
(3) The court erred in giving to the jury plaintiff's instruction with respect to the measure of damages, which said instruction is hereinafter set out. Schwend v. St. Louis Transit Co., 105 Mo.App. 534, 80 S.W. 40.
R. H. Stevens for respondent.
(1) The plaintiff was not a fellow-servant of the motorman and conductor in charge of the car causing the collision. Van Train v. St. Louis, Iron Mt. & Southern Railway Co., 8 Mo.App. 538, 78 Mo. 44; Sullivan v. Railway, 97 Mo. 113, 10 S.W. 852; Parker v. Hannibal & St. Joseph Railway, 109 Mo. 362, 19 S.W. 1119; Selereth v. Railway, 19 Southwestern 1134; Swadley v. Railway, 118 Mo. 268, 24 S.W. 140; Keown v. Railway, 141 Mo. 86, 41 S.W. 926. (2) The departmental doctrine is too well established in this State to be upset by the obiter dicta, as was attempted in the case of Grattis v. Railroad, 153 Mo. 380. The majority of the court in that case holding that this doctrine was not at issue in that case. Although the petition in this case does not charge in a technical sense that this plaintiff was a passenger on defendant's car at the time of the accident, yet he was a passenger entitled to all the care that a passenger under such circumstances would be entitled to. Dickenson v. West End Street Railway, 177 Mass. 365, 52 L.R.A. 326; Chattanooga Rapid Transit, v. Venable, 105 Tenn. 460, 58 S.W. 861, 51 L.R.A. 886; Carswell v. Macon D. & S. Railway, 9 Railroad Reports, p. 833, decided April, 1904; McNulty v. Penn. Railroad (Pa.), 38 L.R.A. 376; Doyle v. Pittsburg Railway (Mass.), 33 L.R.A. 814; Same v. Same, 25 L.R.A. 157; Muldoon v. Seattle City Railway (Wash.), 22 L.R.A. 794.
OPINIONBLAND, 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, it is held that where an employee 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 employee, not a passenger, and hence the company is not liable for an injury to him through the negligence of a coemployee.
In Higgins v. Railroad, 36 Mo. 418, it is held that a railroad employee riding in the baggage car with other employees without the payment of fare, though not traveling in the master's service, was not a passenger.
In Louisville & N. R. Co. v. Weaver, 22 Ky. L. 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 grounds 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 employee, 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 Keef and Kumler cases, and others of the same type, proceeded 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 brakeman were fellow-servants; in Rohback v. Railroad, 43 Mo. 187, in which it was held that a track repairer and trainmen were fellowservants; and in Moore v. Railroad, 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 fellowservants 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:
By Dixon v. Railroad, 109 Mo. where, at page 423, 19 S.W. 412, 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 employees at work in each cannot justly be regarded as fellow-servants of the employees in the other, within the meaning of the rule of exemption."
Relyea v. Railway, 112 Mo. 86, 20 S.W. 480, 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."
Card v. Eddy, 129 Mo. 510, 28 S.W. 979, the rule announced in the Parker case is approvingly cited; and in Sullivan v Railroad, 97 Mo. 113, it was held that a trackwalker was not a...
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