Hoke v. St. Louis, Keokuk & Northern Ry. Co.

Decision Date31 October 1885
Citation88 Mo. 360
PartiesHOKE, Appellant, v. THE ST. LOUIS, KEOKUK & NORTHERN RAILWAY COMPANY.
CourtMissouri Supreme Court

Appeal from St. Louis Court of Appeals.

REVERSED.

N. C. Dryden and A. R. Taylor for appellant.

(1) The facts in evidence sustain the verdict. The plaintiff's injuries were directly caused by the negligence of John Tracy whilst engaged in directing and controlling the business of the defendant, or a department thereof, and the defendant is, therefore, liable. Brothers v. Carter, 52 Mo. 372; Gormly v. Vulcan Co., 61 Mo. 492; McGowan v. Railroad, 61 Mo. 532; Dowling v. Allen, 74 Mo. 13; Malone v. Hathaway, 64 N. Y. 9. (2) Nor does it make any difference as to defendant's liability that the negligence of the agent that occasioned the injury was the personal conduct of the agent. Even if the master (or the vice-principal) at the time of committing the act of negligence be working with the injured servant, still they are not fellow servants, and the master is liable. Ashwith v. Stanwix, 3 El. & El. 701; Gormly v. Vulcan Works, 61 Mo. 495; McGowan v. Railroad, 61 Mo. 528; Shearman & Redf. on Neg., sec. 102. (3) The petition is good, it sets forth that the injury was caused by the negligence of defendant's agent. (4) The verdict should not be disturbed as being excessive. Frick v. Railroad, 75 Mo. 592.

Fagg & Hatch and T. F. McDearmon for respondent.

(1) The petition did not state a cause of action, because it shows that John Tracy and Michael Fitzgerald, whose negligence, it is averred, occasioned the injury to appellant, and appellant were at the time all employes of respondent, engaged in a common employment of loading a wrecked car on to a wrecking train, and makes only the general averment, that said Tracy was one of the controlling officers of defendant's said railroad, to-wit. the road master, without any statement of facts showing that the duties and authority of such road master were such as to make him a vice-principal or alter ego of the appellant. 2 Thompson on Neg., 1026, 1028 and 1050; Wood on M. & S., 809; McGowan v. Railroad, 61 Mo. 528; Scott v. Robards, 67 Mo. 289; Harper v. Railroad, 47 Mo. 567; Waldhier v. Railroad, 71 Mo. 514; Lawler v. Railroad, 62 Me. 463; Leduke v. Railroad, 4 Mo. App. 485. (2) The court should have sustained defendant's demurrer to the evidence. Nolan v. Shickle, 3 Mo. App. 300; Smith v. Harkness, 3 Mo. App. 585; Lindsay v. Mfg. Co., 4 Mo. App. 570. (3) The court committed error in giving plaintiff's first instruction. Cooper v. Ord, 60 Mo. 420; Summer v. McCray, 60 Mo. 493; Wells v. Halpin, 59 Mo. 92; Brothers v. Carter, 52 Mo. 372. (4) Plaintiff's instruction number three was wrong, for it makes the liability of defendant rest entirely upon the negligence of a “superior” co-employe, without defining the authority of such employe, or how or by whom the defendant could be guilty of negligence. Marshall v. Schricker, 63 Mo. 372; Brothers v. Carter, 52 Mo. 372; McGowan v. Railroad, 61 Mo. 528; Harper v. Railroad, 47 Mo. 567. (5) Instruction number nine, given by the court on its own motion, was erroneous. Goetz v. Railroad, 50 Mo. 473; Henschen v. O'Bannon, 56 Mo. 289. (6) Instructions number five, six, seven and eight, offered by respondent, should have been given, for they correctly declared the law, viz.: that before liability can be fixed on defendant, the testimony must prove that at the time of the negligence complained of, the servant whose negligence caused the injury must have been in discharge of some absolute or implied duty which the master owed to the servant, and the injury complained of must have resulted from the negligent discharge of such duty. Daubert v. Pickel et al., 4 Mo. App. 590; Murphy v. Railroad, 4 Mo. App. 565; Rains v. Railroad, 71 Mo. 164; Marshall v. Schricker, 63 Mo. 308; Gormley v. Vulcan Iron Works, 61 Mo. 492; Crispin v. Babbitt, 81 N. Y. 520; McCasker v. Railroad, 84 N. Y. 77; Lee v.Detroit Bridge Co., 62 Mo. 565; McGowan v. Railroad, 61 Mo. 528; Gibson v. Railroad, 46 Mo. 163; Rohback v. Railroad, 43 Mo. 187; McDermott v. Railroad, 30 Mo. 115; Lawler v. Railroad, 62 Me. 463; Blake v. Railroad, 70 Me. 60.

RAY, J.

This was an action for damages for an injury alleged to have been done to plaintiff by defendant and its employes while engaged in loading a wrecked car upon a wrecking train of defendant. The action was commenced in the Lincoln circuit court, and afterwards transferred to that of St. Charles, where there was a verdict and judgment for plaintiff for ten thousand dollars, from which the defendant appealed to the St. Louis court of appeals, where the judgment of the circuit court was reversed and the cause remanded, from which the plaintiff appealed to this court.

The case is reported in 11 Mo. App. 574, where the general facts of the case appear, except that the record shows the extent and nature of the powers, duties, and jurisdiction of Tracy, as road master of defendant, more fully than appears by the opinion. The controlling question in the case, and upon which it was made to turn in the court of appeals, is whether the plaintiff and said Tracy were fellow servants in the transaction in which the injury was received, or whether said Tracy in said transaction acted as vice principal or alter ego of the defendant company. The court of appeals in effect held that the plaintiff and said Tracy were fellow servants, and that it did not appear that the injury complained of arose from any negligence of Tracy's in the matter of employing hands, or in any matter in which he replaced the master, or in any of the business in which he was vice-principal or alter ego of the master, and that plaintiff could not, therefore, recover, and for that reason reversed the judgment of the trial court and remanded the cause, and the propriety of this ruling is now the question before us. The record shows not only that said Tracy was road master of defendant's road, with power to employ and discharge hands, but, also, that as such road master he had jurisdiction over the road bed and track of defendant throughout its entire line; that his duties were to keep road bed, track, cattle guards, and fencing, in repair; that he had authority to employ and discharge section foremen, foremen of construction and wrecking trains, bridge watchmen, and, also, all men and laborers in his department; that his authority and jurisdiction extended alike to laborers, section foremen, foremen of construction or wrecking trains engaged in the work of clearing away or removing a wreck from the road bed or track, or any special foreman engaged in the special work of clearing away such a wreck.

The record also shows that in August, 1879, a supply train of defendant's cars, consisting of three box and three flat cars, had been wrecked on defendant's road, near Foley station, and the evidence on the part of the plaintiff tended to show that the plaintiff at the time of the injury complained of was working in defendant's employ as a laborer under Michael Fitzgerald, an agent and servant of defendant, who was superintending, or bossing, the body of laborers, of whom the plaintiff was one; that plaintiff was acting as a laborer under the direct supervision, direction, and control, of John Tracy, who was defendant's road master, and as such had control of the road bed and track of defendant's entire line, with the powers, duties and jurisdiction heretofore stated in that behalf; that said Fitzgerald was section and construction foreman of defendant, and was assisting said “Tracy in superintending plaintiff and other laborers in removing the wreck and loading a flat car,” whose wheels and trucks had been broken off, upon a wrecking train, both of which were owned by defendant, and being controlled by defendant's agents. The wrecking train was composed of an engine and flat cars, and had been cut in two, some of the cars attached to the engine being south of the wrecked flat car, and other cars standing still north of the wrecked car. The flat, or wrecked, car had been lifted upon the track of defendant's road when the train was cut in two and the north end of the wrecked car had been lifted up and placed on the first car in the wrecking train north of the wrecked car, and the other laborers and plaintiff, under the control and supervision of Tracy and Fitzgerald, were attempting to place the south end of the wrecked car on the first car of the wrecking train, immediately south of the wrecked car, so that the first car on the south might be pushed under the wrecked car. This wrecked car was held up above the level of the first flat car south by levers resting on the floor of the first flat car south, the north ends of which levers extending a few inches under the south end of the wrecked car, and while the wrecked car was held up by the levers plaintiff was ordered by Fitzgerald and Tracy to go under the wrecked car and push out one of the levers. Plaintiff obeyed the order, and whilst pushing at the lever, Tracy, intending to signal the engineer to move the engine north and thus force the flat car on which the levers were resting under the wrecked car, by carelessness and mistake signaled the engineer to move south, in consequence of which the engine was moved south and thereby drew the flat car and levers from under the wrecked car and caused the same to fall on plaintiff, crushing and crippling him for life. The testimony on the part of the defendant, on the contrary, tended to show that Tracy gave the right signal, but that the engineer, by mistake and carelessness, moved the engine south instead of north, thus causing the accident. On this point the testimony is conflicting as to what signal Tracy gave, but all agree that if he gave the signal the plaintiff's witnesses say he gave, he gave the wrong signal, caused the cars to move the wrong way, and thus occasioned the accident and injury in question, and so the jury found.

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