Harper v. Indianapolis & St. Louis R.R. Co.

• Decision Date: 31 October 1869
• Citation: 44 Mo. 488
• Parties: THOMAS L. HARPER, Appellant, v. THE INDIANAPOLIS AND ST. LOUIS RAILROAD COMPANY, Respondent.
• Court: Missouri Supreme Court

44 Mo. 488

THOMAS L. HARPER, Appellant,

v.THE INDIANAPOLIS AND ST. LOUIS RAILROAD COMPANY, Respondent.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Plaintiff was a minor and sued by his next friend.

Bell, and Sherzer, for appellant.

A company is responsible to its servants for its own negligent acts. (Snow v. H. R.R., 8 Allen, 445; Keegan v. Western R.R., 4 Seld., N. Y., 175; Noyes v. Smith, 28 Verm. 62; Ryan v. Fowler, 24 N. Y. 413; Wright v. N. Y. C. R.R., 25 N. Y. 565; Warner v. Erie R.R. Co., 39 N. Y. 478; Patterson v. Wallace, 28 Eng. Law & Eq. 50; Marshall v. Stewart, 33 Eng. Law & Eq. 7; Wilson v. Merry, 3 H. L. 326.) It is bound, in duty to its servants, to employ servants competent in their respective spheres, and to use safe machinery; and if it knowingly transgresses, it becomes liable for all injuries sustained. (1 Redf. on Rail., 3d ed., 520; Frazier v. Penn. R.R., 38 Penn. St. 104; McDermott v. P. R.R., 30 Mo. 116; see, also, authorities above cited.)

C. W. Hanna, and Garesche & Mead, for respondent.CURRIER, Judge, delivered the opinion of the court.

According to the plaintiff's brief, “this is an action brought to recover damages for injuries sustained through the fault and negligence of the company in allowing a fireman, in the absence of the engineer, to manage and control the locomotive engine” attached to the train of which the plaintiff was conductor. If this is an accurate characterization of the complaint and cause of action, then there is much force in the views presented in the able brief filed in the cause for the plaintiff. But these views are based on a possible theory of the facts developed at the trial, rather than upon the allegations of the petition.

The plaintiff was in the employment of the defendant as the conductor of a construction train; and while thus employed was thrown from the train and seriously injured. He seeks to recover damages of the defendant on the ground that the injury was caused by the negligence of the defendant in the non-employment of a suitable engineer to control and manage the engine attached to said train.

The petition avers “that it was the duty of the defendant to employ a competent engineer to take charge of and manage the locomotive engine used in drawing said train; and that the defendant failed and neglected to perform this, its said duty.” The petition then proceeds to narrate the incidents which are supposed to have eventuated in the alleged injury, giving the time, place, circumstances, and instrumentalities preceding and attending the principal event, to-wit: the injury to the plaintiff; and to deduce that injury from the alleged negligence of the defendant in the non-employment of a suitable engineer.

Now, the gravamen of the charge consists in this: that it was the duty of the defendant to employ a suitable engineer, and that it failed and neglected to do so. The remaining averments pertain to time, place, etc., whereby it is sought to connect the injury of plaintiff with the negligence of the defendant, in the particulars stated, as the source and procuring cause of the casualty.

The gist of the matter, according to the petition, lies in the imputed non-employment of a suitable engineer, and not in “allowing a fireman, in the absence of the engineer, to manage and control the locomotive.” There is no allegation that defendant either “authorized” or “allowed” this; nor is there any averment to the effect that the defendant in any manner countenanced this supposed “negligent act.” The petition is barren of averments of that character.

The court, therefore, in settling the instructions, was perfectly right in putting out of view...