Lewis v. St. Louis & Iron Mountain R.R. Co.

• Decision Date: 31 March 1875
• Parties: M. D. LEWIS, Public Adm'r in charge of estate of EDWIN S. MANN, Appellant, v. ST. LOUIS & IRON MOUNTAIN RAILROAD CO., Respondent.
• Court: Missouri Supreme Court

59 Mo. 495

M. D. LEWIS, Public Adm'r in charge of estate of EDWIN S. MANN, Appellant,

v.ST. LOUIS & IRON MOUNTAIN RAILROAD CO., Respondent.

Supreme Court of Missouri.

March Term, 1875.

Appeal from St. Louis Circuit Court.

Everett Pattison, for Appellant.

I. The cause does not abate on account of the death of appellant after appeal taken, judgment having been in his favor below.

a. When the plaintiff recovered judgment in the court below, the cause of action became merged in the judgment. (Kimbrough v. Mitchell, 1 Head, 539; 2 Bouv. Inst., 149; see also 15 Conn., 524.)

b. The death of the plaintiff after final judgment does not abate the suit; execution may issue. (Wil. Ex., *766.) And if a plaintiff in error dies after errors assigned, the writ does not abate. (Wil. Ex., *1710; Carroll vs. Bowie, 7 Gill, [Md.], 34.)

c. And the appeal taken by the defendant to the general term of the Circuit Court, did not vacate the judgment; it only suspended it. The cases that hold that a valid appeal vacates the judgment, apply only to cases where there is to be a trial de novo in the appellate court, as in appeals in chancery cases, OF appeals from courts of inferior jurisdiction. (Rogers vs. Hatch, 8 Nev., 40; Curtis vs. Beardsley, 15 Conn., 518.)

We call especial attention to the wording of the statute on the subject of abatement. The statute providing for the revival of suits before judgment, contains the provision that the suit shall not abate “if the cause of action survive or continue.” (Wagn. Stat., p. 1049, § 1.) But these words are not found in the section providing for the revival of suits in the Supreme Court. (Wagn. Stat., 1067, § 26.) Sec. 30 applies only to the course of proceeding-- the method of bringing in the parties.

d. The reversal of the judgment by the General Term did not absolutely vacate the judgment, plaintiff having taken an appeal to the Supreme Court from the judgment of reversal. (Wil. Ex., *762; see also Marguard vs. Rieter, 30 Mo., 248.) And a reversal of the General Term, by the Supreme Court, would restore the judgment of the court below. (Perry vs. Alford, 5 Mo., 502; Strouse vs. Drennan, 41 Mo., 294.)

II. Respondent cannot complain of the refusal of its instructions.

Those given declared the law very favorably for the defendant below.

Indeed we think that the instructions which told the jury that, if the negligence of a co-employee caused the accident, defendant was not liable, were erroneous. (See Cayzer vs. Taylor, 10 Gray, 274; Harper vs. Ind. & St. L. R. Co., 47 Mo., 579; Brothers vs. Carter, 52 Mo., 375.)

A corporation is liable to an employee for negligence or want of proper care in respect to such acts and duties as it is required to perform and discharge as master or principal, without regard to the rank or title of the agent intrusted with their performance. As to such acts the agent occupies the place of the corporation, and the latter should be deemed present, and consequently liable for the manner in which they are performed. (Flike vs. Boston and Albany Railroad Company, 53 N. Y., 549; and see cases there cited.) Wright, although employed by the company, nevertheless, in respect to his duties as section foreman, stood in the place of the company and his neglect was that of the company.

All, from the highest officer to the lowest laborer, are in one sense fellow servants, and as a corporation can act only through its officers and employees, it follows, under those instructions, that it may mangle and kill its employees ad libitum, and there can be no liability. We do not think that this court will recognize any such principle. (See in this connection, Laning vs. N. Y. C. R. R., 49 N. Y., 529; C & N. W. R. R. Co. vs. Sweet, 45 Ill., 197; C. & N. W. R. R. Co. vs. Jackson, 55 Ill., 492; Harper vs. Ind. & St. L. R. R. Co., 47 Mo., 579.)

III. The first instruction given for plaintiff is proper. (Gibson vs. Pac. R. R. Co., 46 Mo., 163; Snow vs. Housatonic R. R. Co., 8 Allen, 441; Devitt vs. Pac. R. R., 50 Mo., 302.)Dryden & Dryden, for Respondent.

This case is not that of failure to furnish safe machinery and apparatus, as in Gibson vs. Pac. R. R. Co. (46 Mo., 173.) Here respondent did its duty in constructing road bed, etc., and the accident was due to the digging of a hole two or three days previous by a stranger and trespasser.

Respondent employed, as a section foreman, one Wright, whose duty it was to keep the road in good repair at the “ore switch.” It is not claimed that he was incompetent or the company negligent in employing or retaining him; nor that the existence of the defect was brought to the knowledge of any controlling officer of the road. Under such state of facts respondent is not liable. (Hard vs. Vt. Cent. R. R., 32 Vt., 473; Warner vs. Erie R. R., 39 N. Y., 468; Wilson vs. Merry, 1 Scotch D. D. App. [H. L.], 328.)

A broader doctrine than this would force the company to guaranty not merely the competency but the fidelity of co-employees. Wright was not incompetent, but merely negligent. Plaintiff, when he entered the company's service, took all risks arising from such negligence. (McDermott vs. Pac. R. R. Co., 30 Mo., 115; Rohback vs. Pac. R. R. Co., 43 Mo., 187; Brothers vs. Cartter, 52 Mo., 372; Farwell vs. Boston & Worcester R. R. Co., 4 Metc., 49; Torrent vs. Webb, 18 C. B. [68 E. O. L.], 795; Priestly vs. Fowler, 3 M. & W., 1; Wilson vs. Merry, 1 Scotch & D. App. [H. L.] [1868], 328; Mobile & Ohio R. R. Co. vs. Thomas, 42 Ala., 672.) In Snow vs. Housatonic R. R. Co. (8 Allen, 441,) relied on by appellant, the defect in the track was known for months, and the questions were raised whether the track repairer was competent, and whether he was a fellow servant of Snow--the road being in the possession of two different companies.

Instruction No. 2 asked by defendant should have been given. (See Snow vs. Housatonic R. R., supra; Brothers vs. Cartter, supra; Warner vs. Erie R. R., supra; Hard vs. Vt. Cent. R. R., supra; Wilson vs. Merry, supra.)

Instruction No. 4 should have been given for defendant. Plaintiff knew of the danger. (Dewitt vs. Pac. R. R., supra; Barton vs. I. M. R. R., 52 Mo., 253.)

Instruction No. 6 should also have been given for defendant. Wright was, in legal contemplation, a fellow servant. (Farwell vs. Boston & Worc. R. R., 4 Metc., 49; Dewitt vs. Pac. R. R., supra; Barton vs. I. M. R. R. supra.

Plaintiff's instruction No. 1 should have been refused. The evidence does not warrant it. There is no proof that respondent did know or could, with reasonable diligence, have known of the existence of the hole.

The death of Mann should abate the suit. (Wagn. Stat., 1049, § 1; 1062, § 30.) The action died with him. (Wagn. Stat., 87, § 30.) The reversal of the Special by the General Term, placed the case where it stood before the original judgment. (Carson vs. Leggett, 34 Mo., 364; Brown vs. Hann. & St. Jo. R. R., 43 Mo. 294.) It destroyed the original judgment. (Perry vs. Alford, 5 Mo., 502; Strouse vs. Drennan, 41 Mo., 294 Campbell vs. Howard, 5 Mass., 375.)

WAGNER, Judge, delivered the opinion of the court

This was an action brought by the intestate who was the plaintiff below, to recover damages for the loss of a leg while serving as brakesman on defendant's road.

The petition alleged that on the 15th day of June, 1869, plaintiff was injured while in the discharge of his duties as brakesman in coupling cars, without carelessness or negligence on his part, through the negligence, carelessness and want of proper care and prudence of defendant in the management of its railroad, in this: that it permitted deep and dangerous holes to remain open in the ground and road bed, between its side track and the main track, into which plaintiff stepped, whereby he was thrown downward, his foot was thrown upon the track and run over, and crushed by the wheel of the car. It was further alleged, that the existence of the hole into which the plaintiff stepped was not known to him, but that the hole was left by defendant after it was notified of its existence, and knew, or ought to have known, that it was unsafe and dangerous to its employees; that as a result of the injury he twice suffered amputation--once between the ankle and knee, and afterwards between the knee and the hip. Wherefore damages were prayed.

The answer denied negligence, carelessness or want of care on the part of defendant, in permitting deep and dangerous holes in the ground and the road bed, between the main and side track; admitted that plaintiff received injuries from having his foot run over by the cars, but denied that the same was caused by the negligence of the defendant, and averred that it was occasioned in part by an unforeseen and inevitable casualty, and in part by the carelessness and want of prudence of the plaintiff directly contributing thereto.

The answer also denied that defendant's road bed was in a dangerous condition, or that it permitted deep and dangerous holes therein, but stated that, whatever its condition, it was well known to plaintiff at and before the happening of the injury; denied that there was any hole in the ground near the side track of its road, or that it had any notice of any hole being there, before the happening of the injury, and denied that the plaintiff stepped into any hole.

The evidence, in brief, showed, that about daylight, on the morning of the 15th of June, 1869, the train, composed of freight cars, and called the dispatch train, arrived at the “ore switch,” a switch or side track on defendant's road, between St. Louis and Carondelet. The train was in charge of T. J. True, as conductor, and plaintiff and one Jones were the brakemen. On arriving at the “ore switch,” the train was cut in two. One half was backed down on the side track, where plaintiff stood ready to couple the cars to some cars that were standing on the side track. Between the side track and the main track, a hole had been dug, about two or two and a half feet from the side track....