Koerner v. St. Louis Car Co.
| Decision Date | 27 January 1908 |
| Citation | 107 S.W. 481,209 Mo. 141 |
| Parties | HENRY J. KOERNER, Appellant, v. ST. LOUIS CAR COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Robert M. Foster Judge.
Reversed and remanded.
Wm. L Bohnenkamp and Wm. R. Gentry for appellant.
It was stated by the court when the demurrer to the evidence was argued that the court believed the switchman and plaintiff to be fellow-servants and for that reason the demurrer to the evidence was sustained. This fact does not appear in the instruction of the court. (1) Plaintiff was entitled to have his case submitted to the jury on the theory that the act of the switchman in giving the signal to start the dummy without having taken all of the usual precautions and without giving the warning which his duty required him to give, was not the act of a fellow-servant, but was the act of a servant in a different department from the department in which plaintiff was employed and for whose act the master was liable; that as they were working in distinct departments plaintiff and Hensler were not fellow-servants. Lanning v Railroad, 196 Mo. 647; Dixon v. Railroad, 109 Mo. 413; Parker v. Railroad, 109 Mo. 362; Sullivan v. Railroad, 97 Mo. 113; Condon v. Railroad, 78 Mo. 567; Tabler v. Railroad, 93 Mo. 79; Smith v. Railroad, 92 Mo. 359; Miller v. Railroad, 109 Mo. 350; Swadley v. Railroad, 118 Mo. 268; Jones v. Railroad, 125 Mo. 366; Keoun v. Railroad, 141 Mo. 86; Schlereth v. Railroad, 115 Mo. 87. (2) Aside from the department rule, the switchman, in causing the dummy to be moved in such a way and in causing the car upon which plaintiff was working to knock down the scaffold, violated the duty owed by the master requiring the master to furnish the servant a reasonably safe place to work, which duty the master could not rid himself of by imposing it upon any servant, whether of high or low position. Dayharsh v. Railroad, 103 Mo. 570; Moore v. Railroad, 85 Mo. 588; Railroad v. Skola, 183 Ill. 454; Railroad v. Fox, 31 Kan. 587; Railroad v. Triplet, 54 Ark. 289; Railroad v. Holcomb, 9 Ind.App. 198; Railroad v. Heiniel, 82 Tex. 623. (3) The evidence concerning the question of plaintiff's exercising ordinary care for his own safety was of such character that plaintiff was clearly entitled to go to the jury on that point. And there was no evidence tending to show that as a matter of law plaintiff was guilty of negligence which directly contributed to cause his injury. Phippin v. Railroad, 196 Mo. 321.
Seddon & Holland for respondent.
The court did not err in giving the peremptory instruction asked by respondent (defendant) at the close of all the evidence. (1) Because if there was any negligence on the part of the switchman and motorman on the occasion in question, in starting the car without giving a warning, it was the negligence of fellow-servants of appellant. Card v. Eddy, 129 Mo. 510; Rohback v. Railroad, 43 Mo. 187; Murray v. Railroad, 98 Mo. 573; Higgins v. Railroad, 104 Mo. 413; Relyea v. Railroad, 112 Mo. 86; Grattis v. Railroad, 153 Mo. 380; Purcell v. Tennent Shoe Co., 187 Mo. 276; McCarty v. Rood Hotel Co., 144 Mo. 397; Jackson v. Lincoln Commission Co., 106 Mo.App. 441; Ryan v. McCarty, 123 Mo. 636; Steffen v. Mayer, 96 Mo. 420; Shaw v. Bambrick-Bates Construction Co., 102 Mo.App. 666; Stocks v. Railroad, 106 Mo.App. 129; Sherrin v. Railroad, 103 Mo. 378; Hughes v. Fagin, 46 Mo.App. 37; Sheehan v. Prosser, 55 Mo.App. 569; Dayharsh v. Railroad, 103 Mo. 570; Forbes v. Dunnavant, 95 S.W. 934; Bowen v. Railroad, 95 Mo. 277; Herbert v. Wiggins Ferry Co., 107 Mo.App. 287; Armour v. Hahn, 111 U.S. 313. (2) Because the injuries complained of by plaintiff were directly contributed to by his own negligence. Culbertson v. Railroad, 140 Mo. 61; Turner v. Railroad, 74 Mo. 602; Weller v. Railroad, 120 Mo. 635; Clark v. Railroad, 127 Mo. 197; Steffen v. Mayer, 96 Mo. 420; Purcell v. Tennent Shoe Co., 187 Mo. 276.
OPINION
In Banc.
-- This is an action for damages for personal injuries commenced in the circuit court of the city of St. Louis. At the close of the plaintiff's case, the circuit court gave a peremptory instruction to find for the defendant and a verdict was accordingly returned. After an unsuccessful motion for a new trial, the cause was appealed to this court.
The petition alleges the incorporation of the defendant, and charges that it was engaged in the business of manufacturing street cars, and in carrying on its business it maintained large sheds, yards and railroad tracks, both in the yards and in the sheds, wherein cars were kept standing until they were ready to be taken out and delivered to purchasers; that for the purpose of moving the cars from place to place in the yards and sheds, the defendant had a crew known as a switching crew, composed of a motorman and switchman; that the motorman ran what was known as a dummy, which was in fact an electric car, and that it was the duty of the switchman to give proper signals to the motorman, and it was the duty of the mortorman to start and stop the dummy on receipt of these signals; that in addition to having the duty of signaling to the motorman, the switchman was intrusted with the duty of coupling this dummy engine to new cars when they were ready to be taken out of the sheds, and to see that other cars standing upon the same track with the one which was to be moved were not coupled thereto before giving the signal to the motorman to start the dummy, after it was coupled to the car which the switching crew undertook to move. It is further alleged that it was a part of the duty of the switchman to see that the cars standing upon the same track as the ones to which the dummy was coupled, which cars were to be left on the said track, had their wheels properly blocked to prevent them from moving when the car to which the dummy was attached, was pulled away. It is also alleged in the petition that the motorman and switchman were under the direct supervision and orders of the general superintendent of the defendant. The petition then proceeds to state that at the time of the accident and for a long time prior thereto, the plaintiff was a painter by trade, and was employed by the defendant to paint cars in this said plant, and to do other work necessary in and about the finishing of the cars; that plaintiff was engaged in a different department of service from the switchman and motorman and was a member of what was known as the paint gang, under the direction of the paint foreman, who had no authority whatever over the motorman and switchman; that on the 12th day of March, 1903, plaintiff had climbed upon a scaffold or trestle erected by the side of a new car, which was standing on one of the tracks in the defendant's sheds, and was at the time engaged in removing surplus putty from the edges of the windows on the outside of said new car; that while so engaged working upon the said car, there was another new car on the same track directly in front of the one upon which the plaintiff was working and was so close to it that the ends of the two cars touched each other, and they were fastened together in some manner, which was and is still unknown to the plaintiff, but plaintiff did not know at the time that they were so fastened together; that while plaintiff was so engaged at his work, the switching crew came in with the dummy and coupled to the car standing on the same track immediately in front of the car upon which plaintiff was working; that the switchman, after having coupled the dummy to the car in front of the one on which plaintiff was working, negligently gave to the motorman the signal to start said car in motion without having unfastened said car from the one upon which plaintiff was working and without having used ordinary care to see that it was not attached to the car upon which plaintiff was working. It was further alleged that the switchman on said occasion negligently failed to block the wheels of the car upon which plaintiff was working so as to prevent it from moving, and negligently failed to warn plaintiff of his intention to move the said car, which he was about to move, as was his duty to do. It is also alleged that the defendant negligently failed to provide plaintiff with a reasonably safe place in which to work, and negligently failed to provide for his safety, in that the defendant, through its said switchman, carelessly and negligently gave the signal to the motorman to start the dummy in motion and negligently caused the car upon which plaintiff was working to be moved while plaintiff was working upon the same, and negligently failed to warn the plaintiff of his intention to move the said car and negligently failed to block the wheels of the car upon which plaintiff was working, and that the motorman started the dummy in response to the signal from said switchman, putting in motion the car to which the dummy was coupled, and that the said car when it moved forward pulled with it the car upon which plaintiff was working so that the step of the car, upon which plaintiff was working, was caused to strike the support of the scaffold upon which plaintiff was working, and knocked the same down, throwing the plaintiff off, and injuring him severely. The petition then closed with a description of the plaintiff's injuries and the damages he had sustained and a prayer for judgment in the sum of fifteen thousand dollars together with the costs of the case.
The answer was, first, a general denial;...
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