Matthews v. Chicago, B. & Q. R. Co.

• Decision Date: 01 March 1910
• Citation: 126 S.W. 1005,227 Mo. 241
• Court: Missouri Supreme Court
• Parties: MATTHEWS v. CHICAGO, B. & Q. R. CO. et al.

126 S.W. 1005

227 Mo. 241

MATTHEWS v. CHICAGO, B. & Q. R. CO. et al.

Supreme Court of Missouri, Division No. 1.

March 1, 1910.

1. MASTER AND SERVANT (§ 243) — INJURIES TO SERVANT — ASSUMPTION OF RISK — VIOLATION OF INSTRUCTIONS.

Except where the master's rules are violated by the servant with his knowledge and consent, or with knowledge and without objection on his part, when a servant is injured in consequence of a violation of the master's instructions, there can be no recovery, as by so doing the servant assumes all the risks incident thereto.

2. MASTER AND SERVANT (§ 243) — DEATH OF YARD FOREMAN — VIOLATION OF INSTRUCTIONS.

A letter from the master mechanic of a railroad company to a yard foreman and engine hostler, referring to the handling of engines by helpers, and stating, "Now, from this time on have it understood that the hostler only is to handle the engine," cannot be construed not to apply to the foreman so as to permit recovery against the company if he was struck and killed by an engine operated by his helper under his orders.

3. MASTER AND SERVANT (§ 185) — INJURY TO EMPLOYÉ — LIABILITY OF MASTER.

If a yard foreman, who was killed by an engine run by his helper, was the only one authorized to give orders to his helper, and if, in operating the engine, he was not at the time acting

under the foreman's orders, he was not acting at all for the company, but was a trespasser, whose acts were not binding on it, and it would not be liable.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by Isabelle Matthews against the Chicago, Burlington & Quincy Railroad Company and another. From a judgment for plaintiff, defendants appeal. Reversed as to the railroad company, and affirmed as to the other defendant.

This suit was brought by the widow of M. M. Matthews, deceased, against the defendants, to recover $10,000 damages sustained by her through their alleged negligence in killing her said husband. A trial was had in the circuit court of Audrain county, which resulted in a judgment in her favor against both defendants for the sum of $9,000. In due time and in proper form both appealed the cause to this court.

Many questions are raised and discussed by counsel for both the plaintiff and the defendant company, but the view we have taken of the case renders it unnecessary for us to notice but one of them, which will be presently stated.

The deceased was foreman and the day hostler for the defendant railroad company at Francis, Audrain county, and was killed by an engine of said company on February 26, 1906, in the yards at Francis. The engine at the time of striking Matthews was being run by defendant Stone. One C. D. Glaves was night hostler in the same yards, and said Stone was a hostler's helper. His duties were to assist the hostler, and do ordinary day labor in and around the yards and roundhouse. He was employed by Matthews and was under his sole charge, and was subject only to his orders. It was the duty of deceased to care for the yards, see that all engines were properly cared for and housed when not in use, and during the day to move all engines that were to be moved in the yards. Those same duties devolved upon Glaves during the night. Both of them were experienced engineers. The defendant Stone, as well as all other hostler helpers, learn to be hostlers and engineers under the eye, supervision, and direction of the hostler, and, ordinarily, when they become proficient in that business, they assist the hostler in the actual operation and running of the engines; but in this particular instance Stone, it seems, had not performed this particular branch of his duties in a satisfactory manner to the master mechanic of the company, who had charge and control of all hostlers and their helpers. A previous accident had occurred at Francis while Stone, the helper, had charge of the engine, and because of that accident the master mechanic, I. N. Wilber, sent to Matthews, the deceased, the following letter of instructions, to wit: "Mr. W. W. Matthews, Foreman, Francis — Dear Sir: Why was the hostler's helper handling engine No. 121 this morning? What was the hostler doing? This is the second accident we have had at Francis where the helper was handling the engine. Now, from this time on have it understood that the hostler only is to handle the engine. Yours truly, [Signed] I. N. Wilber."

A blinding snow storm was raging on the morning of and at the time of the accident which resulted in the death of Matthews. About 40 minutes previous to the accident, Stone ran the engine down to the office, where Matthews was performing some duty to the company. Upon reaching the office the latter instructed Stone to run the engine back up to the roundhouse and shovel the snow out of the turntable tracks, and that he would get the section foreman and his men to...