McGinnis v. Chicago, R. I. & P. Ry. Co.

Decision Date22 December 1906
PartiesMcGINNIS v. CHICAGO, R. I. & P. RY. CO. et al.
CourtMissouri Supreme Court

An employé of a railway company sued the company and a fellow employé for injuries sustained while the employé and fellow employé were lifting a hand car on top of lumber loaded on a tool car, in consequence of the fellow employé letting go of his hold of the car. The jury found that the fellow employé was free from negligence. Held that, as the right to recover from the company was dependent on the doctrine of respondeat superior, the employé was not entitled to a verdict against it.

Appeal from Circuit Court, Clinton County; Alonzo D. Burnes, Judge.

Action by Thomas J. McGinnis against the Chicago, Rock Island & Pacific Railway Company and others. There was a judgment for defendant French and against defendant the Chicago, Rock Island & Pacific Railway Company, and it appeals. Reversed.

M. A. Low, Paul E. Walker, and Frank P. Sebree, for appellant. Pross T. Cross and John A. Cross, for respondent.

GRAVES, J.

Action for personal injury. Suit was instituted against defendant the Chicago, Rock Island & Pacific Railway Company, and two of its employés, Welsh and French. Upon close of plaintiff's evidence the trial court sustained a demurrer to the evidence as to defendant Welsh, but overruled the demurrers of the other two defendants. After the evidence closed the case was submitted to the jury and a verdict returned in favor of defendant French, but against the defendant company in the sum of $10,000. Upon this verdict judgment was rendered against defendant company for the said $10,000 and costs. After unsuccessful motion for new trial an appeal was duly perfected and taken to this court by the railway company.

In the petition it is alleged that plaintiff and defendants Welsh and French were employés of defendant railway as members of a gang of bridge carpenters; that defendant Welsh was foreman of the gang; that on the day of the accident, February 6, 1903, they were working near or at the station of Dearborn, Mo.; that defendant Welsh ordered a tool car to be loaded with some old bridge lumber, and after the lumber was placed on the car ordered some hand cars to be placed on top of the lumber; that after the cars were placed thereon, with wheels down, the defendant Welsh ordered plaintiff and other colaborers to turn them over; that the lumber was so placed on the car as to make the place dangerous to work on. The petition then proceeds as follows: "That, in obedience to said orders and commands of defendant Welsh, plaintiff and defendant French took hold of and lifted on the handles of one end or side of one of said hand cars, and two of said other hands took hold of and lifted on the handles of the other end of said car, and that, when one side of said car was raised from off said timbers, the defendant French, while in the line of his duties to defendant railway company, although knowing and seeing plaintiff's perilous position on the edge of said loaded car, did carelessly, negligently, and wantonly let go of his hold on said car and ceased to help plaintiff to hold and lift the same, and wantonly and negligently shoved and pushed said car towards plaintiff, and that on account of all the above said hand car moved and slid towards and onto plaintiff, and he was, without any fault or negligence on his part whatever, pushed and forced over the side and edge of said loaded car, and onto the ice and frozen ground below, with great force and violence, and permanently injured as hereinafter set out. (3) That the negligence and wantonness on the part of the defendant was as follows: (a) That the defendant French, while so helping to lift and hold said hand car, negligently, wantonly, and carelessly pushed and shoved said car onto and toward plaintiff; (b) that the defendant French, while helping to lift and hold said hand car as aforesaid under the said orders and commands of the said Welsh, negligently and wantonly let go his hold thereon and ceased to hold and help hold said hand car; (c) that the defendant Welsh, in the line of his duties to defendant railway company, negligently ordered and required plaintiff to get on top of said loaded car to assist in lifting said hand cars when it was dangerous and unsafe for plaintiff to do so, and this the said Welsh well knew, or could have known by the exercise of ordinary care." The petition then described the character of the injuries and alleged damages in the sum of $2,566.

The separate answer of each defendant was practically the same—(1) a general denial; (2) an admission that plaintiff and defendants Welsh and French were members of a gang of bridge carpenters, and that plaintiff fell from the car and received slight injuries, but denied the seriousness of the injuries; (3) and a plea of contributory negligence. Reply is a general denial.

With the views we have of this case, an extended statement of the evidence is not required. Plaintiff, after testifying to his employment by defendant company and that defendants Welsh and French and three others, Ferguson, Kincade, and Pardee, were likewise employed on the bridge gang of carpenters, and that Welsh was a carpenter the same as he was, "only he was a straw boss," described the manner of his injury thus: "Q. Go ahead, Mr. McGinnis, and in your own language tell what took place. A. Well, we had a hand car or push car for our tools. We had removed some of the bridge timber out of a couple of spans of bridge, and Mr. Welsh come to the conclusion he would load this bridge timber. So we loaded it on our tool car, as you might call it. It was part boxed, about eight feet boxed and the balance a flat car. We started in to load the timber until it was above the top of the box car. After we got the timber on Mr. Welsh says, `Now, take hold and run the push car on top of the bridge timber.' So we fastened the ropes to the rubble car and pulled it on. Q. State your position while putting the car on. A. My position was on the ground with Mr. Welsh. The other men were on top of the car, holding the ropes. We simply pulled it up until it got out of our reach, and then Mr. Welsh told me to get on top of the car and help pull it up. I got up and we helped, and then he ordered us to turn it over on its back, turn the wheels up—Q. Now, state the position of the rubble car on top of this bridge timber. Did it set crossways or lengthways? A. Crossways, just as it come up. Q. Go ahead and state what you done. A. After we got it up there we all got around it. I believe it was Kincade that—Q. State what orders, if any, Mr. Welsh gave you there as to your position. A. Mr. French stood to the opposite corner, and I was the left of French. Mr. Welsh said to me, `You get around on the end of the car where you can do something.' Well, I stepped around and we started to pick it up. We got it on its edge and Mr. French give the car a shove, started the car up like that, and the car fell and I just went off on the hard ground. Q. When he shoved the car, state what direction it fell in. A. Well, it went south. I think the road runs in an angle that way at the depot there. Q. When he gave the shove, did he continue to hold the car? A. No, sir; he just shoved and stood back. Q. He let go of the car? A. He let go of the car. Q. At the time you was lifting the car on, you said you was at the west end of the car? A. I was at the west end of the car. Q. Where was French? A. On the north side of the car. Q. On the north side of the car? A. Yes, sir; at the corner. Q. The same corner you was at the end of? A. Yes, sir. Q. Now, where were the other three men holding the car? A. On the east side of the car. Q. Then you and French were left— A. We were lifting there together. Q. To lift that entire part of the car? A. Yes, sir. Q. And when he let go of the car, you had no other assistance? A. I had no other assistance. I was alone at the end of the car. Q. Were the three men on the other end still holding the car and lifting? A. They had hold I expect, but I wasn't given any time. After it started to go I went off like a shot and dropped on the ground. Q. Did you have any notice of any kind? A. No, sir; no warning or notice of any kind whatever. Q. State, Mr. McGinnis, how much space there was between the west end of the push car and the edge of the car loaded with bridge timber for you to stand on. A. I expect maybe 14 inches. Not over the width of the stringer, if that much. Q. After you fell off, state what was done. A. Well, after I dropped on the ground, French he laughed at me. Q. French laughed at you? A. French laughed at me. Of course, I thought my feet was all mashed to pieces, and when I tried to stand up and couldn't do it, I crawled on my hands and knees to get to the other side. They let me lay there until they loaded the car. After they finished loading the car they picked me up and carried me into the bunk car, and French was still laughing."

On cross-examination, he describes the incident thus: "When we picked it up and got it on its side, about like that, Mr. French was here and I was at the end of the car. We turned it on its edge just like that, and then Mr. French started it that way, and he stepped back and the car fell with a slant, like that. It was all done so quick that all I know is French started it, and then he laughed. * * * I was holding the end, just the same as that, the rubble car in that position. When we got her started,...

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