McMurray v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 02 February 1910
• Citation: 125 S.W. 751,225 Mo. 272
• Court: Missouri Supreme Court
• Parties: McMURRAY v. ST. LOUIS, I. M. & S. RY. CO.

125 S.W. 751

225 Mo. 272

McMURRAY v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

February 2, 1910.

1. PLEADING (§ 426) — STRIKING OUT — WAIVER.

Defendant waived its right to have certain matters stricken from the complaint by answering over to the merits and declining to stand on its motion to strike out.

2. APPEAL AND ERROR (§ 1053) — HARMLESS ERROR — ADMISSION OF EVIDENCE.

In an action against a railroad for death of an employé, killed when the car at which he was working was struck by a construction train which backed in on the switch where the car stood, where defendant claimed that the law did not require it to maintain watchmen to notify employés of the movement of cars, error, if any, in admitting evidence that defendant's brakeman was not on the rear car when deceased was killed was cured by striking out the evidence.

3. MASTER AND SERVANT (§ 227) — INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE — FELLOW SERVANTS.

A servant injured through the concurring negligence of himself and that of a fellow servant cannot recover from the master.

4. MASTER AND SERVANT (§ 226) — INJURIES TO SERVANT — ASSUMPTION OF RISK.

The rule that a servant, injured as the result of a risk incident to his employment, cannot recover does not apply where the injury was attributable to the negligence of the master.

5. MASTER AND SERVANT (§ 280) — INJURIES TO SERVANT — ASSUMPTION OF RISK — SUFFICIENCY OF EVIDENCE.

Evidence held insufficient to show that the death of a servant was caused by any risk incidental to his employment.

6. DEATH (§ 10) — ACTIONS WHICH SURVIVE — NEGLIGENT INJURIES — FELLOW SERVANT.

Neither at common law, nor under Rev. St. 1899, §§ 2864, 2865 (Ann. St. 1906, pp. 1637, 1644), nor by Laws 1897, p. 96, was a cause of action for injuries to a servant caused by a fellow servant transmitted, on the injured servant's death, to his widow or children.

7. TRIAL (§ 143) — QUESTIONS FOR JURY — DEMURRER TO EVIDENCE.

Where the evidence on a question is conflicting, it is one for the jury, and a demurrer to the evidence will not lie.

8. MASTER AND SERVANT (§ 287) — INJURIES TO SERVANT — FELLOW SERVANTS — QUESTION FOR JURY.

Whether an injured servant and other employés were fellow servants is a question for the jury, when the evidence thereon is conflicting, and, where not, one for the court.

9. MASTER AND SERVANT (§ 196) — "FELLOW SERVANTS" — WHO ARE.

In Missouri, those only are "fellow servants" who, under the direction and management of the master in person, or some servant placed by him over them, are engaged in the performance of the same common work, with no dependency on or relation to each other except the bare fact that they work together without rank, the test not being that all work for the same person or company; but they must be engaged in the same common employment and under the same common master.

10. MASTER AND SERVANT (§ 287) — FELLOW SERVANTS.

A car repairer is not, as a matter of law, a fellow servant with a construction gang.

11. MASTER AND SERVANT (§ 265) — FELLOW SERVANTS.

It would not be assumed, in the absence of evidence to the contrary, that a carpenter gang engaged in repairing a caboose were fellow servants with a construction gang.

12. MASTER AND SERVANT (§ 191) — DEATH (§ 10) — FELLOW SERVANTS.

A member of a car repairing gang working under a foreman was not a fellow servant with a construction train crew working under a separate foreman, neither foreman having any authority and control over the other crew; and hence such servant's cause of action did not abate on his death, but survived to his widow under Rev. St. 1899, §§ 2864, 2865 (Ann. St. 1906, pp. 1637, 1644).

13. MASTER AND SERVANT (§ 291) — INJURIES TO SERVANT — PLEADING — DAMAGES — INSTRUCTIONS.

Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), provides that, when any person shall die from injury resulting from the negligence of a railroad's officers or servants while running a train, etc., the road shall pay to decedent's widow or minor children $5,000. Sections 2865 and 2866 provide that whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who or the corporation which would have been liable if death had not ensued shall be liable, notwithstanding the death of the person injured, for damages not exceeding $5,000. In an action against a railroad for death of an employé, the complaint stated a cause of action under said section 2864, alleging that defendant's servants negligently ran a train into the car on which deceased was working, etc., and praying for the penalty of $5,000. The complaint then stated in the same count a common-law action of negligence against defendant, alleging negligent failure to provide a safe place for work, to station a man on the train to warn deceased of its approach, etc. There was evidence tending to prove both causes of action. Held, that a charge submitting to the jury in one instruction the two causes of action, and telling them that if they found for plaintiff to assess damages at $5,000, was erroneous.

Valliant, C. J., and Gantt and Lamm, JJ., dissenting.

In Banc. Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Action by Frank McMurray, administrator of the estate of Dora A. Nimmo, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed by division No. 2, and cause transferred on defendant's motion to court in banc. Reversed and remanded for new trial.

This cause was submitted at the last term of this court to division No. 2. An opinion was handed down affirming the judgment of the circuit court in favor of the plaintiff. Defendant filed therein a motion for a rehearing, also one asking that division to transfer the cause to court in banc. The latter motion was sustained, and the cause is here for disposition on its merits.

The petition is in the following words and figures (formal parts omitted):

"For her cause of action against the defendant plaintiff states that the defendant is a corporation duly organized and existing under the laws of the state of Missouri, and as such is, and was at all times hereinafter mentioned, the owner and operating certain lines of steam railway in the state of Missouri, and among other lines is, and was at the times of the grievances herein complained of, constructing a line of railroad through the county of Lawrence, in said state of Missouri, and upon which it was at all times herein mentioned operating construction trains with steam locomotives and flat and other cars, used for hauling its dirt from a deep cut east of the city of Aurora, Mo., to fill in and construct a fill or `dump' just west of said city. That in order for said construction trains to meet and pass each other in their work, defendant had constructed and caused to be laid a `spur' switch, just east of said city, about 1,000 feet long, where said trains often took siding for those running in opposite direction to pass them. Said spur was connected with the main track at its western terminus, where it curved shortly and sharply to the south, thence running in an easterly direction parallel to the main line, terminating at the east end, and on an elevation or `dump,' while the main track went into a cut and continued in an eastern direction. That by reason of the sharp curve in said track or switch, and the existence at the time of the several mining structures and piles of rock, gravel, and waste from the mines and mining lands along and through which said railroad bed was constructed, persons working upon and near said spur switch could not see the main line of said railroad, nor the approaching trains operating thereon, west of said switch connection, nor until said trains had passed the curve in said spur switch.

"Plaintiff further states that she is the widow of Albert P. Nimmo, deceased, who was killed by the defendant's cars, so operated on said railroad, about the _____ day of November, 1904, and as such widow is entitled to sue herein and to prosecute this action. That deceased, Albert P. Nimmo, as aforesaid, was an employé of said defendant at said date, as a car repair carpenter, and as such, at the time of his death, was working for the defendant, and under its direction in repairing its car, known as a caboose, which was by the defendant placed upon the said spur switch above described for purpose of being repaired. That said caboose was so placed and left upon said switch, near its eastern terminus, in order that it might not be struck or moved by the said construction trains taking siding thereon. That it was the legal duty of the defendant, while said deceased was so employed by it in repairing said caboose, to use reasonable care and caution to furnish him a reasonably safe place to work, regard being had to the kind and nature of his employment, and to see that he was not subjected to unnecessary dangers, without informing or warning him of the same, and to see that unnecessary obstructions were not placed by it so as to obstruct his view from approaching trains, which might cause his injury, and to use reasonable care in running their said trains in and upon said spur switch, so as not to have cars come against or strike said caboose, so being repaired by deceased and other carpenters, with such force as to suddenly knock or shove it, and thereby injure them, or subject them to danger without notifying or warning them of such fact, while they were so engaged with their duty in repairing said caboose, and also to give them reasonable warning, by signals or otherwise, of the approach of said trains when they were so being side-tracked upon said spur switch, where said deceased and other carpenters were at work on said repairs. That in...