Higgins v. Missouri Pac. Ry. Co.

• Decision Date: 19 May 1891
• Parties: HIGGINS v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

16 S.W. 409

104 Mo. 413

HIGGINS v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

May 19, 1891.

INJURY TO RAILROAD EMPLOYE — NEGLIGENCE OF FELLOW-SERVANT — PLEADING.

1. Though the safety of the laborers on a work train requires that the engineer should give the customary signals when the train is about to start, and it is made a part of his duty to give the signals, his failure to do so is the negligence of a fellow-servant, and the railroad company is not liable for a resulting injury to a laborer on the train.

2. A statement in the petition that "the engineer was then and there, and in that behalf, the vice-principal of the defendant, and his said act and negligence was the act and negligence of the defendant," is a legal conclusion, and not an averment of an issuable fact.

Appeal from St. Louis circuit court.

C. P. & J. D. Johnson, for appellant. Bennett Pike, for respondent.

GANTT, P. J.

On the 31st day of May, 1888, the plaintiff filed in the St. Louis circuit court an amended petition stating her cause of action, as follows: "Now, at this day comes the plaintiff, Mary A. Higgins, and by leave of court first had, files this, her amended petition, and for cause of action against the defendant, the said Missouri Pacific Railway Company, states that the said defendant is a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, and, as such, owns and operates, and at the times hereinafter set forth owned and operated, locomotives and trains of cars upon and over a certain railway and tracks extending westwardly from said city of St. Louis, through the county of St. Louis and other counties, to Kansas City, in the state of Missouri. And plaintiff states further that she was lawfully married to one Michael J. Higgins in the year 1860, and continued to live and cohabit with said Higgins as his wife until on or about the 9th day of November, 1887, on which day the said Higgins departed this life. And plaintiff states further, that on the said 9th day of November, 1887, the said Higgins was, and for a long time prior thereto had been, in the employ of the defendant as a laborer in and upon a construction train owned and operated by it along and upon its said railway tracks; that upon the said day the said construction train was at and upon what is known as "Dozier Switch," a part of the said railway in the said county of St. Louis; that said train then and there consisted of 17 or 18 open, unguarded flat-cars, with a locomotive engine attached thereto, which said engine was used for the purpose of propelling the said train; that the said engine was then and there in charge and under the management and control of one Gallagher, an engineer, who was then and there and for that purpose a servant of the defendant; that one Michael Murphy, a conductor, and an agent and employe of the defendant, then and there had control and direction of the movements of said train, but that the said engineer, as said servant of the defendant, then and there had the exclusive charge and management of the said locomotive and of the stopping and starting of the said train therewith; that the said open flat-cars were then and there loaded with dirt and gravel, intended to be used by the defendant for the purpose of ballasting its said tracks; that the said engineer in charge of the said locomotive engine, as aforesaid, then and there ran said train upon said switch from the main track of said railway for the purpose of permitting another train of defendant to pass over said main track at the point aforesaid; that the said Higgins was, under...