Hartshorn v. Atchison, T. & S.F.R. Co.

• Decision Date: 27 November 1896
• Citation: 77 F. 9
• Court: U.S. District Court — Western District of Missouri
• Parties: HARTSHORN v. ATCHISON, T. & S.F.R. CO. et al.

77 F. 9

HARTSHORN v. ATCHISON, T. & S.F.R. CO. et al.

United States Circuit Court, W.D. Missouri, Western Division.

November 27, 1896

Warner Dean, Gibson & McLeod, for plaintiff.

Gardner Lathrop and T. W. Moore, for defendants.

PHILIPS District Judge.

This suit was instituted in the circuit court of Jackson county Mo., and on petition of the defendant the Atchison, Topeka &amp Santa Fe Railroad Company the cause was removed into this court. The plaintiff has filed a motion to remand, for the reason that, while the defendant railroad company is a nonresident corporation, the other defendant, Bradbury, is a resident citizen of this state and district, and that the cause of action is not separable. The substance of the petition is that the defendant railroad company owned and operated its line of railroad extending from Argentine, in the state of Kansas, through the states of Missouri, Iowa and Illinois, to the city of Chicago. It then avers that the defendant Bradbury, on or about the dates thereinafter mentioned, was engaged for and at the instance and request of the defendant railroad company in grading and filling in with dirt a part of the trestle approach to the bridge near Sibley in Jackson county, Mo., and that in the performance of said work said Bradbury used a steam shovel operated by him upon the roadbed and rails of the railroad company; that, for the supplying of water to the said steam shovel, he constructed upon the right of way of the said railroad company a water tank, from which projected a water spout so near to the railroad track as to render it dangerous to anyone having occasion to pass on top of a freight car from the outside thereof: and about the 7th day of March, 1896, the plaintiff, an employe of defendant, without knowledge of the proximity of said spout, in climbing up on the outside of the car to the top thereof in order to reach the brakes thereon, was struck by the said waterspout, and injured. To inculpate the defendant railroad company, the petition alleges that said injury was the result of the negligence and carelessness of the defendants, and each of them, in constructing said water tank and spout, and in permitting the same to be constructed upon the right of way of said defendant company so near to the main track and in not warning and instructing the plaintiff of the location thereof, and the danger therefrom to the plaintiff; 'all of which acts, doings, and omissions, and the danger to plaintiff arising therefrom, said defendants, and each of them, knew, or by the exercise of reasonable care might have known. ' The petition is not distinct as to the exact relation of the defendant Bradbury to the railroad company in doing said work. It does not affirmatively appear that he was an independent contractor undertaking said work under a special contract. If his relation to the railroad company was that of an independent contractor, the company would not be liable for injury resulting from his willful or negligent acts in the manner of performing the work. The liability of the railroad company for injury resulting from the misfeasance of Bradbury can only arise out of the relation of master and servant. In view of the phraseology of the averment of the petition, which is that Bradbury was engaged for and at the instance and request of the defendant in performing certain work upon its railroad line, it is perhaps the better legal conclusion that he was doing it as an employe of the defendant company; in other words, as its servant. Prima facie, a person found doing a service for another is in the other's employ. Wood, Mast. & Serv. 584; Perry v. Ford, 17 Mo.App. 212.

In this view of the case, what is the liability of the defendant railroad for the misconduct of the defendant Bradbury in constructing the water tank and spout dangerously near to the railroad track? From the averments of the petition it does not appear that the company did more than to engage Bradbury to do the grading and filling in of the trestle approach to the bridge. The manner in which he should perform the work the machinery and instruments to be employed in its construction, do not appear to have been directed by the company. On the contrary, the reasonable inference is that the construction of the water tank and spout...