"1.
It is claimed by the plaintiff in his petition in this case
That he was in the employ of the defendant as a car repairer
in the yards of the defendant at St. Joseph, Missouri, on
March 3, 1882; that he was ordered by the superintendent, or
boss of repairs, then in charge, to go under a car to make
certain repairs thereon, which order he obeyed; and while
performing his duties, certain other cars were by the
negligence of defendant and its other employes, shoved
pushed, and kicked violently to and upon the car under which
the plaintiff was working, without any warning or notice of
any character whatever to the plaintiff, and that he was
injured by the concussion of said cars and the moving of the
one under which he was working; and further, that said
superintendent, or boss of repairs, was charged with the duty
of seeing to the reasonable safety of the employes of the
defendant engaged in the repairing of cars, and that he was
wholly incompetent for the performance of his duties, which
was well known to the defendant at the time, and was unknown
to the plaintiff; that he was at the time an habitual
drunkard, and had been for a long time prior thereto, which
fact was well known to the defendant, or could have been
known by said defendant by the exercise of ordinary
observation and prudence. The plaintiff claims damages in the
sum of $ 20,000.
"2.
The defendant in its answer denies generally the allegations
contained in the plaintiff's petition, and alleges
negligence on the part of the plaintiff contributing to
whatever injury he may have received, and that by the laws of
Missouri no action can be maintained for such injury.
"3.
It is admitted in open court that the common law was and is
in full force in Missouri in this class of cases.
"4.
Whether the plaintiff is entitled to recover, or not
therefore, depends upon the laws of Missouri, where the
injury is alleged to have happened. By the common law, in
force in Missouri, the master is not liable to his servant
for injuries to him produced by the negligence of a
fellow-servant engaged generally in the same common
employment, provided there be no negligence in the
appointment of such negligent servant, or in the retention of
such servant after notice of his incompetency. This rule of
law proceeds upon the theory that where a master employs
several servants to work for him in the same common
employment, the negligence of one of them toward the other is
not the fault of the master, and is not therefore
attributable to him as his negligence; but if the master
employs a servant to work for him among others, knowing him
to be incompetent, or if he retain him after knowledge of
this incompetency, and injury to his fellow-servant results
from his incompetency, then the master is liable for such
injury to a fellow-servant if such fellow-servant himself
exercised ordinary care; for it is the duty of the master to
exercise ordinary care in the selection and in the retention
of his employe, or servant.
"5.
But the rule that the master is not liable to his servant for
injuries to him produced by the negligence of a
fellow-servant engaged generally in the same common
employment, is subject also to the qualification that where
the master leaves everything in the hands of a middle-man,
reserving to himself no discretion, then the middle-man's
negligence is the master's negligence, for which the
master is liable. And the plaintiff now claims that this case
comes within this qualification.
"6.
If you find from the evidence that Lovell was the
superintendent or boss of car repairs, and that he was by his
employment and position vested with full discretion and
authority to direct the plaintiff to go under the car in the
yards to make the repairs, and to direct other servants to
keep watch of moving cars, or to do so himself, and that the
whole management of the repairs of the cars in the yards, and
the direction of the men under him in doing so, was vested in
him, the defendant and its superior officers reserving no
discretion in themselves as to the direction of the movements
of said car repairers in doing their work, then the
negligence of the boss of car repairs would be the negligence
of the defendant.
"And
if such was the relation of the boss car repairer to the
defendant and to the plaintiff, and the plaintiff was under
the car by direction of said boss car repairer, doing the
work, then it was the duty of the defendant and of said boss
car repairer to use reasonable care to protect the plaintiff
while thus engaged from danger arising from the switching of
cars, and the making up of trains on the same track; and for
an injury resulting from the want of such care the defendant
will be liable, unless the plaintiff, by a failure to
exercise ordinary care, contributed to his own injury, in
which case he could not recover.
"7.
Ordinary care is that degree of care which men of ordinary
prudence usually exercise in their own affairs. This degree
of care will therefore vary with the exigencies of each
particular case. If the defendant exercised that degree of
care which, having respect to the exigencies of the
particular service, ought reasonably to be observed, then the
defendant is not liable, and if the plaintiff exercised the
same degree of care, then he has not forfeited his right to
recover by reason of contributory negligence if he had a
right of action against the defendant for the injury.
"8.
If you do not find that the plaintiff is entitled to recover
of the defendant on the ground that the boss car repairer was
a middle-man, representing the company and standing in its
stead, then it will be your duty to examine the other branch
of the case, namely, whether or not the boss of car repairs
was incompetent, or not, and if incompetent, then whether or
not the defendant knew of such incompetency, or ought to have
known it by the exercise of ordinary care and prudence, and
whether or not the injury to the plaintiff resulted from such
incompetency.
"If
the boss car repairer was a mere fellow-servant with the
plaintiff in the same common employment, then the plaintiff
cannot recover of the defendant by showing simply that his
injury was the result of the carelessness of such
fellow-servant, but in order to recover he must also show
that such fellow-servant was incompetent to discharge his
duties at the time of such injury, and that such injury
resulted from such incompetency, and that such incompetency
was before that time known to the defendant, or might have
been known by the exercise of ordinary care, or that the
defendant did not use proper care in the employment of such
fellow-servant at the time he was employed.
"9.
And the law presumes, in the absence of evidence to the
contrary, that the defendant exercised proper care in the
selection of its servants and employes, and in their
retention, and that such servants and employes were
competent; and it devolves on the plaintiff to prove a want
of care on the part of the defendant in such selection or
retention, and a want of competency on the part of such
servant or employe, and to prove that such incompetency was
known to the defendant, or ought to have been known by the
exercise of ordinary care and diligence, and that the injury
was the result of such incompetency. And a single act of
negligence is not sufficient to establish the incompetency of
a servant or employe.
"10.
If you find that the plaintiff is entitled to recover, then
the next question for you to consider will be the amount of
his recovery. It cannot exceed $ 20,000, for that is the
amount claimed in the plaintiff's petition, and it may be
any sum between that and nominal damages which shall seem
fair and just in view of the injury sustained, without regard
to the character of the parties, as to the needs of the
plaintiff, or the ability of the defendant to pay. There is
no exact rule for the computation of damages in a case of
this kind, but our supreme court has said that 'the
nature of recovery is for the loss of time, for expenses, and
for physical pain which had resulted up to the commencement
of the action, and, if the plaintiff is still disabled from
such injury, such further damages as appear from the evidence
to be the natural and probable result of such injuries.'
Of course you should consider...
