Miller v. Missouri Pac. Ry. Co.

• Decision Date: 04 March 1892
• Citation: 19 S.W. 58,109 Mo. 350
• Parties: MILLER v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

19 S.W. 58

109 Mo. 350

MILLER v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 4, 1892.

DEATH BY WRONGFUL ACT — NEGLIGENCE OF RAILROAD EMPLOYES — FELLOW-SERVANTS — MEASURE OF DAMAGES — INSTRUCTIONS.

1. A conductor of a material train, having control of it and its movements, and a foreman over a gang of men engaged in repairing a railroad track, having power to direct them what to do and when to do it, are not fellow-servants of the men composing such gang.

2. The damages recoverable from the railroad company for the death of one of said gang, occasioned by the negligence of said foreman and conductor in moving the train without giving timely warning, are $5,000, under Rev. St. 1889, § 4425, which imposes that penalty when any person dies from an injury "occasioned by the negligence of any officer, agent, servant, or employe, while running, conducting, or managing any locomotive, car, or train of cars."

3. An instruction that plaintiff was entitled to recover if, "at the time the train was set in motion by defendant, the deceased's attention was occupied by his work," and "no notice or warning was given him of the moving of the train prior thereto," etc., was error, as it did not require the jury to find that the conductor and foreman were vice-principals, and that the injury was due to their negligence.

Appeal from circuit court, Johnson county; CHARLES W. SLOAN, Judge.

Action by Sarah E. Miller against the Missouri Pacific Railway Company to recover damages for the negligent killing of her husband, Joshua Miller, while in defendant's employ. From a judgment for plaintiff, defendant appeals. Reversed.

H. I. Priest and W. S. Shirk, for appellant. I. P. Sparks, for respondent.

BLACK, J.

The plaintiff, the widow of Joshua Miller, brought this suit to recover damages for the death of her husband, who was killed while at work for the defendant on its road at a point between Warrensburg and Montserrat. The deceased was one of a gang of 30 men, all under the direction and control of Fitzgerald, who was their foreman. Fitzgerald and his gang of men were at work raising and ballasting the main track. A gravel train, composed of some 30 loaded cars, arrived at the place where the men were at work in the afternoon, and it became their duty to unload the same. This was accomplished by the use of a plow. A wire cable, the length of 15 or 16 cars, was attached to the plow, placed on the rear car. The train was then cut in two, and the other end of the cable made fast to the rear car of the section next the engine. The engine then moved forward, drawing the plow over the stationary cars. This done, the engine alone was used to draw the plow over the first section. The plow removed the bulk of the gravel only, and threw some of it between the cars, so that it became the duty of deceased and the men of his gang to shovel the remaining gravel off the cars, and to remove that which fell between them. On the occasion in question the plow had been drawn over the rear section, composed of some 15 cars, and the deceased and others were on these cars shoveling off the remaining gravel. The first or unloaded section was then backed up and coupled to the second or rear section. It then became the duty of the conductor to take his entire train of cars to the Montserrat siding, so as to clear the main track for other trains having the right of way. The conductor gave his engineer a signal to move forward. It seems the deceased was in the act of jumping or stepping from one car to the other just as they began to move, so that the jar threw him down between the wheels. The evidence for the plaintiff tends to show that the deceased was absorbed in the performance of his work, and that the train was moved without ringing the bell, or giving the deceased, and those at work on the cars, any warning whatever. On the other hand, the conductor of the train says he told Fitzgerald what his orders were, namely, to take the train to Montserrat; that he notified him to move his men from the cars; that the men were notified to get off before the engine was coupled on; that he asked two or three of the men if the track was clear, and they said it was; that after the men had been notified to get off he gave the engineer the signal to move ahead. The defendant produced other evidence to the effect that the bell was rung a few seconds before the train started. The plaintiff's first instruction is as follows: "If you find that, at the time the train was set in motion by defendant, the deceased's attention was occupied by his work, and that no notice or warning was given him of the moving of the train prior thereto, or at the time of such moving, or that if any such notice or warning was given him it was not of such a character as to put a man of ordinary prudence and care, possessed of ordinarily acute senses of hearing and seeing, in the circumstances in which deceased was placed, on his guard, and that deceased did not know that the train was about to be moved, and that the setting of said train in motion by defendant was the direct cause of the injury to deceased, and that his death was the result of such injuries, then your verdict should be for the plaintiff."

1. The defendant seeks to be relieved from liability in this case on the ground that Miller lost his life by the negligence of a fellow-servant, thus invoking the rule that the defendant is not liable to one servant for the negligence of a fellow-servant. The case made by the evidence stands on other and different grounds, as we view it. Where the master gives to a person power to superintend, control, and direct the men engaged in the performance of work, such person is, as to the men under him, a vice-principal; and it can make no difference whether he is called a superintendent, conductor, boss, or foreman. For his negligent acts and omissions in performing the duties of the master, the master is liable. This principle of law has been often asserted by this court, and applied under a variety of circumstances, as will be seen from the following cases: Brothers v. Cartter, 52 Mo. 372; Gormley v. Iron-Works, 61 Mo. 492; Whalen v. Centenary Church, 62 Mo. 326; Cook v. Railroad Co., 63 Mo. 397; Moore v. Railroad Co., 85 Mo. 588; Stephens v. Railroad Co., 86 Mo. 221; Hoke v. Railroad Co., 88 Mo. 360; Smith v. Railroad Co., 92 Mo. 366, 4 S. W. Rep. 129; Tabler v. Railroad Co., 93 Mo. 79, 5 S. W. Rep. 810; Dayharsh v. Railroad Co., 103 Mo. 570, 15 S. W. Rep. 554.

There is no doubt but a foreman or other representative of the master may occupy a dual position; that is to say, he may at the same time be a fellow-servant and an agent or representative of the master. There are certain duties which are personal to the master, and for the non-performance of which he is liable to his servants. These duties may be delegated to a foreman, or even to a servant, and the master is still liable for their non-performance. Again, cases often arise where the master becomes liable by reason of the fact that he undertakes, by himself or through a representative, to do certain things which might have been left to the servant to perform. Thus, where the master provides suitable materials for a staging, and in trusts the duty of erecting the structure to the workmen as a part of the work which they undertake to perform, he is not liable for injuries resulting to one of them from the falling of the staging; but, if the master undertakes to furnish the stage, he must use due care in its erection, and, if there is negligence on his part or on the part of one representing him in that regard, he is liable for injuries resulting to the servant using the structure. Bowen v. Railroad Co., 95 Mo. 277, 8 N. W. Rep. 230, and cases cited. It is unnecessary to pursue this inquiry for any of the purposes of the case in hand; for it is one of the absolute duties of the master to use...