Peters v. St. Louis & S. F. R. Co.

• Decision Date: 10 November 1910
• Citation: 150 Mo. App. 721,131 S.W. 917
• Court: Missouri Court of Appeals
• Parties: PETERS v. ST. LOUIS & S. F. R. CO.

131 S.W. 917

150 Mo. App. 721

PETERS v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

November 10, 1910.

1. MASTER AND SERVANT (§ 180)—INJURIES TO SERVANT—NEGLIGENCE OF FELLOW SERVANT—STATUTES—CONSTRUCTION.

A statute authorizing a recovery for injuries to an employé caused by the negligence of any coemployé, while managing any train, is of a remedial nature, and the court in construing it must consider the purpose of the Legislature to change the common-law rule and to afford redress to servants of railroad companies who are exposed to the hazards incident to carelessness of coemployés.

2. MASTER AND SERVANT (§ 180) — NEGLIGENCE OF FELLOW SERVANT—INJURY TO SERVANT—OPERATION OF TRAINS— "RUNNING, CONDUCTING, OR MANAGING."

Rev. St. 1909, § 5425, authorizing an action for the death of an employé caused by the negligence of a coemployé while running, conducting, or managing any locomotive, car, or train, etc., covers all cases where an employé is killed by the negligent act in moving cars of any character used on railroad tracks, regardless of the power propelling the cars, and loading a car with freight and moving the car down a track by means of bars, to facilitate the loading thereof, are within the statute, and, where an employé was killed in consequence of the negligence of coemployés loading and moving a car, the railroad company was liable.

3. MASTER AND SERVANT (§ 318)—INDEPENDENT CONTRACTOR—LIABILITY OF MASTER.

One contracting with a competent person exercising an independent employment to do a piece of work not in itself unlawful, or of such a nature that it is likely to become a nuisance or to subject third persons to danger, according to the contractor's own methods, and without being subject to control, except as to the result of the work, is not answerable for the wrong of the contractor or his servants in the prosecution of the work.

4. MASTER AND SERVANT (§ 318)—"INDEPENDENT CONTRACTOR."

One who contracts to do a specific piece of work, furnish his own assistants in executing the work, either entirely in accordance with his own ideas or in accordance with the plan previously given him, and without being subject to the orders of the one for whom the work is done as to the details of the work, is an "independent contractor" and not a servant.

5. MASTER AND SERVANT (§ 317)—EMPLOYMENT OF CONTRACTORS—LIABILITY FOR NEGLIGENCE OF CONTRACTOR'S SERVANTS.

A corporation cannot delegate its chartered rights, privileges, and franchises by contracting with another to exercise them, and it does not relieve itself from liability for the negligence of the contractor's servants while attempting to exercise such rights, privileges, and franchises.

6. MASTER AND SERVANT (§ 317)—EMPLOYMENT OF CONTRACTORS—LIABILITY FOR NEGLIGENCE OF CONTRACTOR'S SERVANTS.

A carrier, engaged in transporting a car load of telegraph poles as freight, is exercising its duty as a common carrier, and it may not delegate the work of transferring the poles from a car which has become defective during transit to another car to carry them to their destination to an independent contractor, so as to escape personal responsibility for the conduct of the contractor in doing the work.

7. PRINCIPAL AND AGENT (§ 1)—"AGENT."

An "agent" is one who acts for another by authority from him; one who undertakes to transact some business or manage some affairs for another by authority and on account of the latter. And the term "agent" applies to any one who, by authority, performs an act for another (citing 1 Words and Phrases, vol. 1, p. 352).

8. MASTER AND SERVANT (§ 180½)—"AGENT" —STATUTES.

A contractor transferring freight from one car which has become defective during transit to another car, to enable the carrier to carry the freight to its destination, is an "agent" of the carrier within Rev. St. 1909, § 5425, authorizing an action for the death of an employé caused by the negligence of any officer or agent while running or managing any car or train.

9. PLEADING (§ 52)—SEPARATE STATEMENT OF CAUSES OF ACTION—ACTIONS FOR DEATH—STATUTES.

The right of action given by Rev. St. 1909, § 5425, authorizing an action for the death of an employé caused by the negligence of coemployés while managing any locomotive, car, or train, and the right of action given by sections 5426 and 5427, authorizing actions for death caused by the wrongful act, negligence, or default of another, are distinct, and, when joined in the same petition, they must be stated in separate counts.

10. MASTER AND SERVANT (§ 180)—DEATH (§ 14) — INJURY TO SERVANT — NEGLIGENCE— LIABILITY.

Where a car load of telegraph poles fell on a car repairer of the carrier, if no effort was being made to move the car, a right of action did not accrue under Rev. St. 1909, § 5425, authorizing an action for the death of an employé caused by the negligence of a coemployé while running, conducting, or managing any car or train; but if the poles were carelessly loaded and, on account thereof, fell on the car repairer and killed him, a right of action for his death existed under section 5426, authorizing an action for negligent death.

11. TRIAL (§ 330) — VERDICT — SEPARATE COUNTS.

A petition, in an action for death, which alleges in different counts a cause of action under Rev. St. 1909, §§ 5425, 5426, authorizing actions for death, states but one cause of action, and, where the jury finds for plaintiff on one count, it must find for defendant on the other, and the jury may not find for plaintiff on both counts and assess damages accordingly.

12. APPEAL AND ERROR (§ 1212)—REVERSAL—NEW TRIAL—SCOPE OF ISSUES.

Where the jury, in an action for negligent death, brought under Rev. St. 1909, §§ 5425, 5426, found for plaintiff on the count in the petition stating a cause of action under the first section, and found for defendant on the count stating a cause of action under the second section, and the judgment was reversed on appeal of defendant, plaintiff, though not appealing, could, on a subsequent trial, retry the issues raised by both counts.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Action by Catherine Peters against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

W. F. Evans and Jones, Jones, Hocker & Davis, for appellant. R. M. Nichols, for respondent.

GRAY, J.

The plaintiff instituted this suit in the circuit court of the city of St. Louis, March 15, 1907, to recover damages from defendant on account of the death of William W. Peters, husband of plaintiff. Peters, who was a car repairer in the employ of defendant, on January 8, 1907, while walking between two tracks in the yards of the defendant in said city, was killed by being struck by a number of telegraph poles which fell from a car being moved on one of the tracks. The poles had been taken from a car that had become out of order, and loaded on another car, for the purpose of being carried to their destination. The testimony tends to prove that a crew of men were at work transferring the poles from the defective car, and in performing this work the poles were taken from the defective car and rolled on skids to the other car. Stakes had been put on the side of the car opposite from where the loading was being done, and the poles had been loaded against the stakes on that side of the car until they showed signs of the load against them. When all the poles but five had been loaded, the skids were so steep that it was difficult to load any more by hand. The men then attempted to move the car down the track a few feet to where there was a derrick that they could use in loading the remaining poles. In moving the car they used bars which they put under the wheels and "pinched" the car along. When the car had been moved about ten feet, some of the standards on the loaded side gave way, and the poles fell off and upon the deceased, who was passing along the track at that point, and he was killed thereby. The plaintiff offered testimony tending to prove that, in moving cars loaded with telegraph poles, the standards are secured either by nailing boards across from one to the other, or by wires. But the witnesses testified that this was not done until the car had been finally loaded and ready for shipment. The only evidence as to the character and strength of the standards showed that they were of the usual size and ordinary strength used for such purposes, and that they gave no indications of being defective, and were in fact the same ones used in hauling the poles into the yards. The petition is in two counts; the first, under section 5425, Rev. St. 1909, and the second under section 5426 of said statutes. On the trial before a jury, a verdict was rendered in favor of the plaintiff on the first count, in the sum of $7,000, and in favor of the defendant on the second count. The defendant appealed from the judgment subsequently rendered on the verdict.

The first count of the petition alleges the relationship of the parties; that it was the duty of the deceased to work in and about the yards of the defendant, and upon the sides of its tracks where cars might be located requiring repairs; that it was the duty of the defendant to furnish the deceased a safe place in which to perform his work, and to maintain appliances upon its cars of sufficient strength to support loads placed thereon, and it was also the duty of the defendant to load and handle freight upon said cars in a proper and secure way; that it was the further duty of the defendant, its servants and employés, to run, conduct, and manage its car or cars over its said road and switches so that the place and places provided for its employés in which to work would not be rendered dangerous; that the defendant, disregarding said duties, carelessly loaded one of its cars upon its track in its yard with large poles; that said poles were by the defendant, or its agents, servants,...