Murray v. St. Louis, C. & W. Ry. Co.

• Decision Date: 04 November 1889
• Citation: 12 S.W. 252,98 Mo. 573
• Court: Missouri Supreme Court
• Parties: MURRAY v. ST. LOUIS, C. & W. RY. CO.

12 S.W. 252

98 Mo. 573

MURRAY v. ST. LOUIS, C. & W. RY. CO.

Supreme Court of Missouri.

November 4, 1889.

FELLOW-SERVANTS.

One employed by a cable-car company to watch at a curve in the track, and signal trains to stop or to continue on, so that they will not meet at the curve, is a fellow-servant with the gripman of a motor car, so as to exempt the company from liability for the death of the watchman, caused by the negligence of the gripman.

Appeal from St. Louis circuit court; AMOS M. THAYER, Judge.

Action by Mary Murray against the St. Louis Cable & Western Railway Company for damages for the death of an employe of defendant. Judgment for defendant, and plaintiff appeals.

A. R. Taylor, for appellant. P. H. Kern, for respondent.

BLACK, J.

This is a personal damage suit, and the only question is whether the court erred in sustaining a demurrer to the evidence at the close of the plaintiff's case. The defendant owned and operated a cable street railroad in the city of St. Louis; and the plaintiff's husband, James Murray, was in the defendant's employ as a watchman at the corner of Fourteenth and Wash streets. The defendant's two tracks at that point make a short curve. It was the duty of Murray to guard the crossing, and to prevent injuries to persons crossing the tracks, and to signal the approaching cars to stop and start, so that they would not pass each other upon the curve. Beyond this, he had nothing to do with the operation of the cars. The evidence tends to show that in the night-time, and while Murray was in the discharge of his duties at the curve, he signaled two of defendant's approaching cars, — the one to stop and the other to move on around the curve. The car signaled to stop, through the negligence of the gripman in charge of it, failed to stop, and the gripman let it go forward until it run over and killed Murray. Murray was exercising ordinary care.

The only question presented by this statement is whether the negligent gripman and the deceased were fellow-servants within the rule that exempts the master from liability for injuries occasioned by one servant to a fellow-servant. The defendant cites and relies alone upon the case of Moore v. Railroad Co., 85 Mo. 588. In that case the plaintiff was a car-repairer, and was injured by the negligence of his foreman. The principle which that case turned upon was this: that, where the master has intrusted to a foreman power to superintend, direct, and control work, the foreman, in the exercise of such powers intrusted to him, is a representative of the master, and for that reason not a fellow-servant. There is no evidence in this case that the gripman occupied the position of a vice-principal, and of course the plaintiff here cannot recover on any such ground. The plaintiff cites and relies alone upon Lewis v. Railroad Co., 59 Mo. 495; Hall v. Railroad Co., 74 Mo. 301; and Sullivan v. Railway Co., 97 Mo. 114, 10 S. W. Rep. 852. In the Hall Case, the plaintiff, who was switchman, brought this suit to recover damages for injuries received by reason of a loose iron rail left upon the track by the negligence of a section foreman. It was then said: "The principal ground relied upon for a reversal of the judgment which the plaintiff recovered is that a switchman and a section foreman are fellow-servants. Adjudications of the courts of other states of the Union sustaining the appellant's position are cited by counsel; and whatever our opinion might be, if it were a question of the first impression in this court, the contrary was held in Lewis v. Railroad Co., 59 Mo. 495; and the doctrine of that case has been adhered to by this court, and we are not inclined to depart from what must therefore be now accepted as the rule settled on that subject in this state." The case of Condon v. Railroad Co., 78 Mo. 567, which is cited in the Sullivan Case, was a suit by a brakeman to recover damages occasioned by reason of a defective hand-hold on the top of a box-car. The court in that case observed: "The third refused [instruction] declares that car-inspectors, at the intermediate stations, were fellow-servants of plaintiff, and that, if the proximate cause of plaintiff's injury was attributable to any want of care or caution on their part, defendant was not liable. Car-inspectors are not co employes with trainmen. Long v. Railway Co., 65 Mo. 225." These observations must be considered in the light of the facts then before the court, and of the cases which are there cited. When this is done, it will be seen...