Jones v. The St. Louis Southwestern Railway Company
| Citation | 28 S.W. 883,125 Mo. 666 |
| Parties | Jones v. The St. Louis Southwestern Railway Company, Appellant |
| Decision Date | 22 December 1894 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court.
Affirmed.
Sam. H. West and Lyne S. Metcalfe, Jr., for appellant.
(1) The plaintiff was at the time of the injury a servant of the defendant. First. The general servant of one person may, for a time or on a particular occasion, become the servant of another by submitting himself, either expressly or impliedly to the control and direction of the other. Morgan v Smith, 35 N.E. 101; Hasty v. Sears, 31 N.E 759; Johnson v. Lindsay, L. R. App. Cas. (1891) 371; Rourke v. Colliery Co., L. R. 2 C. P. Div. 205; McDowell v. Co., 28 N.Y.S. 821; Wyllie v. Palmer, 33 N.E. (N. Y.) 381; Kimball v. Cushman, 103 Mass. 194; Brown v. Smith, 86 Ga. 274; Clapp v. Kemp, 102 Mass. 481; Murray v. Currie, L. R. 6 C. P. Div. 24; Railroad v. Jones, 12 S.W. 972; Perry v. Ford, 17 Mo.App. 212; Railroad v. Schneider, 45 Ohio St. 678. Second. The relation of master and servant exists where the person sought to be charged as master either employed or controlled the servant, or had the right of control over him at the time the injury happened. Co. v. Conlon, 92 Mo. 221; Wood on Master and Servant, sec. 306. Third. The servants and porter of a Pullman car company engaged in their duties on one of their cars, forming part of a railway company's train, are the servants of the railway company. Penn. Co. v. Ray, 102 U.S. 451; Williams v. Car Co., 40 La. Ann. 417; Kinsley v. Railroad, 125 Mass. 54; Thorpe v. Railroad, 76 N.Y. 402; Dwinelle v. Railroad, 120 N.Y. 117; Railroad v. Walrath, 38 Ohio St. 461; Louisville v. Katzenberger, 16 Lea, 380; 26 Amer. St. Rep. 334, note; 3 Wood on Railways, 1699, 1701. (2) The plaintiff and the engineer of the train were fellow servants of the defendant engaged in a common employment, working together under one common directing superior and in the same department of service, and the injury to plaintiff being caused by the negligence of engineer, plaintiff is not entitled to recover from defendant. First. The general servant of one person may, by working toward a common end along with the servants of another and submitting himself to the control and orders of that other, become pro hac vice the fellow servant of his servants, so as to disable him from recovering for injuries sustained through the negligence of the latter's servants. Hasty v. Sears, 31 N.E. 759; Johnson v. Lindsay, L. R. App. Cas. (1891) 371; Wiggett v. Fox, 11 Exch. 832; Rourke v. Colliery Co., L. R. 2 C. P. Div. 205; Killia v. Faxon, 125 Mass. 485; Ward v. Fibre Co., 154 Mass. 419; Morgan v. Smith, 35 N.E. 101; Ewan v. Lippincott, 47 N. J. L. 192; Johnson v. Boston, 118 Mass. 114; Railroad v. Cox, 21 Ill. 20. Second. Where there is any partnership arrangements between two masters (e. g. two railroad companies), wherein a servant is employed for the common business of both, the servants of either master will become fellow servants. McKinney on Fellow Servants, p. 46; Railroad v. Schneider, 45 Ohio St. 678; Swainson v. Railroad, L. R. 3 Exch. Div. 341. Third. The engineer of a railway train is the fellow servant of a trainman working on the same train. McKinney on Fellow Servants, sec. 129; Wood on Master and Servant, p. 861; Higgins v. Railroad, 104 Mo. 413. Fourth. Whenever the person injured, and he by whose negligent act the injury is occasioned are engaged in a common employment, working together under one common directing superior, and in the same department of service of the same master, no action will lie against the master, if he be innocent of any personal negligence. Foster v. Railroad, 21 S.W. 916; Relyea v. Railroad, 112 Mo. 86; Murray v. Railroad, 98 Mo. 573; Railroad v. Harper, 44 Ark. 524; Bauer v. Railroad, 46 Ark. 388; Railroad v. Gaines, 46 Ark. 555; Railroad v. Rice, 51 Ark. 467. (3) Plaintiff, being in the general employment of the Pullman palace car company, and in the special service of the defendant at the time of the injury, is barred from recovery against defendant by reason of his contract, entered into as a consideration of employment, whereby he released, acquitted and discharged defendant from all claims for liability of any nature or character whatsoever on account of any personal injury or death while traveling over its lines in said employment and service. First. A contract by which one, in consideration of employment as a Pullman car porter, releases the Pullman car company and also the transportation companies over which its cars operate from liability for injuries while engaged in said employment and service, is binding and will bar recovery from a transportation company for injuries caused by the negligence of the latter's servants, the transportation company itself not being guilty of any personal negligence. Bates v. Railroad, 34 Am. and Eng. R. R. Cases (Mass.), 355; Griffith v. Earl of Derby, 9 Q. B. Div. 357; Blair v. Railroad, 66 N.Y. 313; Railroad v. Bishop, 50 Ga. 461; Galloway v. Railroad, 57 Ga. 512. (4) The damages allowed by the referee, viz., $ 3,000, were excessive.
Virgil Rule and Charles P. Johnson for respondent.
(1) Plaintiff and the conductor and engineer were not fellow servants. Nor could plaintiff's agreement to obey the "rules and regulations" of defendant make them such. Dixon v. Railroad, 109 Mo. 425; Parker v. Railroad, 109 Mo. 362; Sullivan v. Railroad, 97 Mo. 113; Schlereth v. Railroad, 115 Mo. 87; Railroad v. Carroll, 6 Heisk., 347; Baird v. Pettit, 70 Pa. St. 477; Pool v. Railroad, 53 Wis. 657; Garrahy v. Railroad, 25 F. 258; Hobson v. Railroad 11 P. 545 (Ariz.) ; Railroad v. O'Brien, 1 Wash. St. 599; Railroad v. Kelly, 127 Ill. 637; Howard v. Canal Co., 40 F. 195. (2) If plaintiff was injured by the negligence of both the conductor and engineer, if the engineer was a fellow servant and the conductor a vice-principal, defendant is still liable. McKinney on Fellow Servants, sec. 16; Railroad v. Cummings, 106 U.S. 700; Booth v. Railroad, 73 N.Y. 38; Steller v. Railroad, 46 Wis. 497; Relyea v. Railroad, 112 Mo. 94. (3) Servants of an employer and those of a subcontractor are not fellow servants. Dixon v. Railroad, 109 Mo. 424; McKinney on Fellow Servants, sec. 17; Coughtry v. Globe Co., 56 N.Y. 124; Barrett v. Mfg. Co., 1 Sweeny, 545; Delvan v. Smith, 89 N.Y. 470; Smith v. Railroad, 19 N.Y. 127; Hass v. Railroad, 88 Pa. St. 269; Cunningham v. Railroad, 51 Tex. 503; Riley v. Company, 29 La. Ann. 791. (4) Plaintiff was a passenger on defendant's train, and entitled to the protection of defendant as such. First. Parties traveling on what is known as a "drover's pass," employed by the owners of the stock, the contract stipulating that such employee was an employee of the carrier also, and also stipulating that the railway company should not be liable for negligence of its servants. Railroad v. Ivy, 71 Tex. 409; Hutchinson on Carriers, sec. 555 "B;" Railroad v. Henderson, 51 Pa. St. 315; Railroad v. Curran, 19 Ohio St. 1; Railroad v. Miles, 40 Ark. 298; Maslin v. Railroad, 14 W.Va. 180; Railroad v. Lockwood, 17 Wall. 357; Railroad v. Shelby, 47 Ind. 471. Second. Employees of express companies, traveling in the express car under contract with the express company, attending to the express freight, being carried by the railroad. Hutchinson on Carriers, secs. 564, 565; Brewer v. Railroad, 124 N.Y. 59; Keeney v. Railroad, 125 N.Y. 422; Fordyce v. Jackson, 56 Ark. 597; Yeoman's v. Navigation Co., 44 Cal. 79; Jennings v. Railroad, 15 Ont. App. 485. Third. Postal clerks and mail agents, traveling in the mail car, either by contract or without any special contract, but riding free attending to the United States mails. Mellor v. Railroad, 105 Mo. 460; Magoffin v. Railroad, 102 Mo. 540; Thompson on Carriers, p. 401; Hutchinson on Carriers, secs. 555 "B" and 563; Wood's Railway Law, 1043; Railroad v. Wilson, 79 Tex. 372; Seybolt v. Railroad, 95 N.Y. 563; Blair v. Railroad, 66 N.Y. 313; Collatt v. Railroad, 16 Ad. and El. (N. S.) 984; Yeomans v. Navigation Co., 44 Cal. 79; Hammond v. Railroad, 6 S. Car. 170. Fourth. Others on railroad trains for various purposes, riding on free passes, by contract or otherwise, but not regular passengers. Railroad v. Stevens, 95 U.S. 655; Com. v. Railroad, 108 Mass. 7; Yeomans v. Navigation Co., 44 Cal. 71; O'Donnell v. Railroad, 59 Pa. St. 239; Railroad v. Burns, 51 N. J. L. 340; Brown v. Sullivan, 71 Tex. 477. (5) The defendant could not, by contract, exempt itself from liability for negligence, causing injury to persons lawfully upon its train. Mellor v. Railroad, 105 Mo. 460; Tibby v. Railroad, 82 Mo. 300; Clark v. Railroad, 64 Mo. 447; Sturgeon v. Railroad, 65 Mo. 569; Graham v. Railroad, 66 Mo. 536; Carroll v. Railroad, 88 Mo. 239; Bailey on Master's Liability to Servants, 476; Thompson on Carriers, 401; 2 Wood's Railway Law, 1043; Roesner v. Herman, 8 F. 782; Railroad v. Peavy, 29 Kan. 173; Railroad v. Spangle, 44 Oh. St. 476.
Action for personal injury on account of negligence. I adopt, in substance, the very fair and succinct statement of counsel for appellant.
"Plaintiff at the time of the injury complained of, was in the general employment of the Pullman's Palace Car Company, as a car porter, by virtue of a contract between him and the said company, by which, among other things, it was stipulated that in consideration of said employment he undertook and bound himself 'to obey all rules and regulations of the transportation companies made for the government of their own employees over whose lines the said Pullman's Palace Car Company may operate while I am traveling over said lines in the employment and service of said Pullman's Palace Car Company; and in consideration...
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