Matthews v. Chicago, Burlington & Quincy Railroad Company
| Decision Date | 31 March 1910 |
| Citation | 126 S.W. 1005,227 Mo. 241 |
| Parties | ISABELLA MATTHEWS v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY and W. L. STONE, Appellants |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. James D. Barnett, Judge.
Reversed as to the defendant company; affirmed as to the defendant Stone.
O. M Spencer, Fry & Rodgers, H. H. Trimble and Palmer Trimble for appellants.
(1) (a) The servant assumes all risks of injury resulting from acts done in violation of the master's orders and rules. Francis v. Railroad, 110 Mo. 387; Schaub v Railroad, 106 Mo. 74; Alcorn v. Railroad, 108 Mo. 81; Zumwalt v. Railroad, 35 Mo.App. 661; State v. Caster, 93 Mo. 248; 3 Elliott on Railroads (2 Ed.), sec. 1314, p. 765; O'Brien v. S. C Co., 165 Mass. 435; Railroad v. DeWees, 153 F. 56; Railroad v. Chasteen, 88 Ala. 591; Railroad v. Dye, 70 F. 24; Railroad v. Craig, 80 F. 488; Ledberg v. R. I. Co., 97 Mich. 443; Coops v. Railroad, 66 Mich. 448; Beaver v. Railroad, 39 A. & E. R. R. Cas. 269, 136 F. 306; Smith v. R. & U. Co., 29 Conn. 261; Mickelson v. Railroad, 20 A. & E. 855; Railroad v. Woods, 195 Ala. 568; Francis v. Railroad, 127 Mo. 674; Knight v. Cooper, 36 W.Va. 232; Palmade v. Harter, 29 Nev. 303; Smith v. Foster, 93 Ill.App. 138; Railroad v. Manias, 51 Miss. 641. (b) Disobeying rules. State v. Castor, 93 Mo. 248; Railroad v. DeWees, 153 F. 56; Railroad v. Dye, 70 F. 24; Railroad v. Craig, 80 F. 488; Francis v. Railroad, 127 Mo. 674. (2) Matthews was especially instructed not to permit Stone to run an engine. His act in violation of such instruction, was negligence per se. Alcorn v. Railroad, 108 Mo. 81; Francis v. Railroad, 110 Mo. 387; Barry v. Railroad, 98 Mo. 69; Lefler v. Railroad, 96 Mo. 270; Price v. Railroad, 77 Mo. 508; Gardner v. Railroad, 58 Mich. 584; State v. Caster, 93 Mo. 248; Francis v. Railroad, 127 Mo. 674; Railroad v. Whitcomb, 12 N. E. (Ind.) 380; Railroad v. DeWees, 153 F. 56; Leeds v. Railroad, 74 Ia. 54; Railroad v. Dye, 70 F. 24; Schaub v. Railroad, 106 Mo. 74; Railroad v. Craig, 80 F. 488; Zumwalt v. Railroad, 35 Mo.App. 667; Railroad v. Caraway, 45 Am. & Eng. R. R. Cases (Ark.) 532; Railroad v. Lightheiser, 45 Am. & Eng. R. R. Cases (Ind.) 130; Reagan v. Railroad, 93 Mo. 352; Labatt, Master and Servant, 948; Railroad v. Hooker, 170 F. 154; Railroad v. Collier, 157 F. 347; Nordquist v. Railroad, 89 Minn. 485; Scott v. Railroad, 90 Minn. 125; Brown v. Railroad, 44 Wash. 1; Railroad v. Mothersedt, 110 Ala. 143; Simpson v. Railroad, 39 N.Y.S. 464. (3) Stone was not acting within the scope of his employment, hence the railway company is not liable for his acts. Farber v. Railroad, 116 Mo. 81; Snyder v. Railroad, 60 Mo. 419; Hartman v. Muehlebach, 64 Mo.App. 565; Sherman v. Railroad, 72 Mo. 63; Walker v. Railroad, 121 Mo. 575; Stringer v. Railroad, 96 Mo. 299; Jones v. Railroad, 43 Mo.App. 398. (4) The relation of master and servant and the scope of employment of the servant is created by contract, express or implied. Pendleton v. Railroad, 104 S.W. 382; Thompson, Law of Negligence, sec. 4677; Railroad v. Hocker, 111 Ky. 707; Labatt, Master and Servant, sec. 633. (5) If the act done by the servant is not within the scope of his employment, nor specially ordered by the master, the master is not liable, even though the act is done while working for the master. Bowen v. Railroad, 39 A. & E. 269; 3 Elliott, Railroads, p. 100; Farber v. Railroad, 116 Mo. 81; Snyder v. Railroad, 60 Mo. 419; Hartman v. Muehlebach, 64 Mo.App. 565; Sherman v. Railroad, 72 Mo. 63; Slinger v. Railroad, 96 Mo. 299; Jones v. Railroad, 43 Mo.App. 398. (6) Matthews knew Stone was incompetent, hence he was guilty of contributory negligence in putting him on the engine. This is elementary law. 4 Elliott on Railroads (2 Ed.), sec. 1314, p. 7661, note 154. (7) The burden of proving that Stone was authorized to handle the engine rests on respondent. Walker v. Railroad, 121 Mo. 575; Cousins v. Railroad, 66 Mo. 572; Farber v. Railroad, 116 Mo. 81.
Barclay, Fauntleroy & Cullen for respondent.
(1) Defendant's rule and custom required the bell to be rung or the whistle sounded on all moving engines, and to move an engine without giving such signals is negligence on defendant's part, and a servant is not guilty of contributory negligence because he walks upon the tracks in discharge of his duty. Lewis v. Railroad, 121 S.W. 1090; Dixon v. Railroad, 109 Mo. 429, 119 Mo. 203; Thompson v. Railroad, 93 Mo.App. 548; Speed v. Railroad, 71 Mo. 303; Railroad v. Rhea, 84 S.W. 428; Railroad v. Schultz, 19 O. C. C. 639; Ring v. Railroad, 112 Mo. 220; 1 Labatt, Master & Servant, p. 452, sec. 209; Anderson v. Mill Co., 42 Minn. 424; Anderson v. Railroad, 8 Utah 128; Railroad v. Barker, 17 Ky. L. Rep. 424; Britton v. Railroad, 47 Minn. 340; Railroad v. Holcomb, 9 Ind.App. 211; Amato v. Railroad, 46 F. 464; Smith v. Railroad, 132 N.C. 824; Railroad v. Craft, 16 C. C. A. 834; 4 Thomp., Neg. (2 Ed.), secs. 4067 and 4167. (2) If the master intrusts a servant with possession and control of the subject-matter, and the servant exceeds his instructions in an attempt to serve his master, the master is liable. Douglas v. Stephens, 18 Mo. 367; Garretzen v. Duenckel, 50 Mo. 104; Harreman v. Stowe, 57 Mo. 98; Mound City Co. v. Colon, 92 Mo. 229; Whitehead v. Railroad, 99 Mo. 270. (3) Under our fellow-servant law the servant of a railroad company may recover damages by reason of the negligence of any other agent or servant thereof, and proof that the hostler's helper was in the employ of the defendant makes a case under the fellow-servant act. Laws 1897, sec. 1, p. 96; Callahan v. Railroad, 170 Mo. 473. (4) When rules do not command the doing or not doing of a particular act or acts, but impose upon the servant duties calling for the exercise of judgment, skill, and diligence, the question whether an act is a violation of the rules is one of fact. Railroad v. Parker, 131 Ill. 557; affirming 33 Ill.App. 405; Bucklew v. Railroad, 64 Ia. 603; Railroad v. Galbraith, 109 Pa. St. 32. (5) Even when a servant knowingly and intentionally violates a rule of the master, his disobedience must contribute to the injury as a proximate cause thereof in order to preclude a recovery. Fickett v. Fibre Co., 91 Me. 268; Glasgow Coal Co. v. Sneddon, Sc. Ct. of Sess. 7 F. 485; Chielinsky v. Hoopes Co., 1 Marv. (Del.) 273; Rittenhouse v. Railroad, 120 N.C. 544; Smith v. Powell Co., 10 Ohio Dec. (Reprint) 799; Morrow v. Mfg. Co., 70 S.C. 242; Culpepper v. Railroad, 90 Tex. 627; Railroad v. Kane, 118 F. 223; Prather v. Railroad, 80 Ga. 435; Railroad v. Fowler, 61 Kas. 320; White v. Railroad, 72 Miss. 12; Railroad v. Veach, 46 S.W. 493; Ford v. Railroad, 110 Mass. 240; Mason v. Railroad, 114 N.C. 718; Railroad v. Wallace, 76 Tex. 636; Railroad v. Ryan, 69 Tex. 665; Railroad v. Maupin, 26 Tex. Civ. App. 385; Driver v. Railroad, 103 Va. 659; Freeman v. Glen Falls Co., 70 Hun (N. Y.) 530. (6) The master is liable for the tortious acts of his servants done in the course of his employment, although contrary to his orders. Railroad v. Derby, 14 How. (U.S.) 468. (7) Where a railroad company promulgates a rule for the safety of its employees, but the rule is constantly violated by them, with the knowledge of the representatives of the company, an employee will not be deemed to be guilty of negligence in disregarding the rule. Barry v. Railroad, 98 Mo. 62; Frances v. Railroad, 110 Mo. 387; Bussey v. Railroad, 58 S.E. 1015; Anderson v. Railroad, 102 Minn. 355; Railroad v. Dupree, 84 Ark. 377; Feneff v. Railroad, 82 N.E. 705. (8) The question whether the rules of a master have been nullified by their habitual disregard is a question for the jury. Tullis v. Railroad, 105 F. 554; McNee v. Coburn Co., 170 Mass. 285; Railroad v. Smock, 23 Colo. 456; Mohr v. Railroad, 55 A.D. 176, 66 N.Y.S. 899. (9) The testimony of the witness Bruns to the effect that he had notified Matthews not to allow Stone to operate the engine sprang from an interested source, was inconsistent and contradictory; and the credibility of such testimony is for the jury and not for the court, and the same is true of the testimony of Stone and other witnesses. Bryan v. Wear, 4 Mo. 106; Wolff v. Campbell, 110 Mo. 114; Gordon v. Burris, 141 Mo. 602; Seehorn v. Bank, 148 Mo. 256; Ford v. Dyer, 148 Mo. 528; Gannon v. Gas Light Co., 145 Mo. 502; Vincent v. Means, 184 Mo. 327; Mowry v. Norman, 204 Mo. 173; Hunter v. Wethington, 205 Mo. 284; Davidson v. Transit Co., 211 Mo. 320; Porter v. Stockhard Co., 213 Mo. 372; Poplar Bluff v. Hill, 92 Mo.App. 17; Kingsbury v. Joseph, 94 Mo.App. 298; Hugumin v. Hinds, 97 Mo.App. 346; Dodd v. Giseffi, 100 Mo.App. 311; Chinn v. Railroad, 100 Mo.App. 576; Holland v. Railroad, 105 Mo.App. 117; Whitson v. Bank, 105 Mo.App. 505; Dawson v. Wombels, 111 Mo.App. 532; Bank v. Hammond, 124 Mo.App. 177; 1 Thompson on Trials, sec. 1037. (10) Facts and circumstances opposing the otherwise uncontradicted testimony of an unimpeached witness raise an issue of his credibility which must be tried by the jury. Holland v. Railroad, 105 Mo.App. 117; Jenks v. Glenn, 86 Mo.App. 329; Rice v. McFarland, 41 Mo.App. 489; Hunter v. Withington, 203 Mo. 292; 1 Starkie on Ev. (6 Am. Ed.), pp. 480, 493.
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 $ 9000. 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...
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