McGinnis v. Chicago, R. I. & P. Ry. Co.
Decision Date | 22 December 1906 |
Parties | McGINNIS v. CHICAGO, R. I. & P. RY. CO. et al. |
Court | Missouri 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.
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: 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:
On cross-examination, he describes the incident thus: ...
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