Moss v. Pacific R.R.

• Decision Date: 31 January 1872
• Citation: 49 Mo. 167
• Parties: ANN M. MOSS, Plaintiff in Error, v. THE PACIFIC RAILROAD, Defendant in Error.
• Court: Missouri Supreme Court

49 Mo. 167

ANN M. MOSS, Plaintiff in Error,

v.THE PACIFIC RAILROAD, Defendant in Error.

Supreme Court of Missouri.

January Term, 1872.

Error to Cole Circuit Court.

J. N. Litton, for defendant in error.

I. The second count is demurrable under the third section of the damage act (Wagn. Stat. 520). Unless the master was guilty of the lack of ordinary care in the selection of servants, he is not liable. (McDermott v. Pacific R.R., 30 Mo. 115; Rohback v. Pacific R.R., 43 Mo. 187; Gibson v. Pacific R.R., 46 Mo. 169; Warner v. Erie, 39 N. Y. 468; P. & Ft. W. R.R. v. Devereaux, 17 Ohio, 197.) The plaintiff clearly intended to charge defendant with personal negligence in this, that it did not use ordinary care and diligence in the selection of its servants, but has failed to do so. Negligence cannot be charged by inference, but must be by direct, positive and traversable averment--by declarations that directly tender to defendant an issue on negligence, the gist of the action--otherwise it is bad on demurrer. (Brown v. Harmon, 21 Barb., N. Y., 508; 10 Minn. 71; Griggs v. Upham, 9 Minn. 246; P. & C. R.R. v. Kelly, 23 Ind. 133; 10 Allen, Mass., 301; Atwood v. Caswell, 19 Pick. 495; Buffalo v. Holloway, 7 N. Y. 498.)

II. It is stated that defendant authorized and allowed its servants to neglect their “duties.” This word is a mere nullity. The pleader must state what duties, whether duties to defendant, duties imposed upon every man alike by the law of the land, or duties imposed by christianity and morality. Judging from the pleading, it is the latter duties to which the pleader refers. This is entirely insufficient. (Buffalo v. Holloway, supra; 2 Duer, N. Y., 678; 43 Mo. 546; 37 Mo. 330; Ticknor v. Voorhies, 46 Mo. 110.) It is a mere conclusion of law or of the pleader, no allegation of fact. (Anderson v. Jaccard, 32 Mo. 188; Stearns v. Stearns' Adm'r, 30 Verm. 216; 3 Gray, Mass., 484.)

H. Flanagan and G. T. White, for plaintiff in error.

BLISS, Judge, delivered the opinion of the court.

A minor son of the plaintiff was killed while in defendant's employ, and she brings this action under the act concerning damages, etc. (Gen. Stat. 1865, ch. 147; Wagn. Stat. 519.) The petition contains three counts, but it is unnecessary to consider the first, inasmuch as a motion to make it more definite was affirmed by consent, and the plaintiff, instead of amending, took a voluntary nonsuit as to this count.

The second count alleges, in substance, that it was defendant's duty to employ careful and skillful servants in running its trains; that defendant failed to do this, by reason of which, while aiding in running the train, the plaintiff's minor son, in defendant's employ, was wounded and disabled, and for many hours was exposed to the cold upon the road, through the incompetence and want of care of such servants, and not by his own negligence, from which he died.

The third count substantially charges that plaintiff's minor son, being in the employ of defendant upon a freight train, as one of its servants, was so injured by falling from the train and exposure to the cold as to cause death; that this was caused by defendant's allowing its employees to neglect their duties, and to suffer and cause deceased to be thrown from the train, by which he was injured and suffered to remain in the cold a long time, when he could have been removed, and not by his own fault, etc.

No objection was made to the statement of the same cause of action in different counts, but a demurrer was sustained as to the second and third, and judgment entered upon the demurrer, to reverse which the plaintiff has sued out his writ of error.

The pleader has attempted to base these counts upon the third section of the act, which provides that a cause of action which arises from personal injuries shall survive, notwithstanding the death of the injured party, if it be caused by the injury. We have then only to inquire whether these counts would show a liability to the plaintiff's son at common law, for the pleader does not attempt to bring the defendant within the liability created by the second section of the statute.

That the master is not liable to one of his own servants for the negligence of other servants is conceded. But the pleader attempts in the second count to charge negligence in their employment. Had he done so the pleading would have been good, for the master is under obligation to use due care and diligence in the selection and employment of his agents and servants, and for want of such care is responsible to all other servants for any damage that...