Peters v. St. Louis & San Francisco Railroad Company
| Decision Date | 10 November 1910 |
| Citation | 131 S.W. 917,150 Mo.App. 721 |
| Parties | CATHERINE PETERS, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from City of St. Louis Circuit Court.--Hon. Robert M. Foster Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
W. F Evans and Jones, Jones, Hocker & Davis for appellant.
(1) The court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence as to the first count of plaintiff's petition. Strottman v Railroad, 211 Mo. 227; Gayle v. Foundry Co., 177 Mo. 427. (2) The court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence as to the second count of plaintiff's petition.
R. M. Nichols for respondent.
(1) Prying the car along on the switch track was "running, conducting or managing" the car, within the meaning of the Act of 1905, designated as section 2864, and the falling of the telegraph poles upon the deceased, due to insufficiently securing the load upon the car, while said car was being thus run, conducted or managed, gave the plaintiff a cause of action under said act. Pratt v. Railroad, 122 S.W. 1125; McKenzie v. Railroad, 216 Mo. 1; Aley v. Railroad, 211 Mo. 460; Casey v. Transit Co., 205 Mo. 721; King v. Railroad, 130 Mo.App. 368; Anderson v. Railroad, 196 Mo. 442; Callahan v. Railway, 170 Mo. 473; Stubbs v. Railroad, 85 Mo.App. 192; Orendorff v. Railroad, 116 Mo.App. 348; Huston v. Railroad, 129 Mo.App. 576; Turner v. Railroad, 132 Mo.App. 238. (2) The plaintiff's deceased husband, as a car repairer, and the men in charge of the car, loading it, were not under a common master, were not fellow-servants, and therefore plaintiff could recover in her second count, which states a cause of action under section 2865, for failure of defendant to furnish her husband a safe place in which to work. Moore v. Railroad, 85 Mo. 588; Hope v. Railroad, 88 Mo. 360; Tabler v. Railroad, 93 Mo. 79; Steel Co. v. Zienkowski, 220 Ill. 324, 77 N.E. 190. (3) Plaintiff had a right to state her cause of action under sections 2864 and 2865 in different counts in the same petition, and to go to the jury upon both counts. Lancaster v. Insurance Co., 92 Mo. 468; Cramer v. Barman, 193 Mo. 327; Casey v. Transit Co., 205 Mo. 721; McKenzie v. Railway Co., 216 Mo. 1; Akers v. Bank, 63 Mo.App. 320; Leu v. Transit Co., 110 Mo.App. 458; Shearer & Martin v. Hill, 125 Mo.App. 383. (4) The railway company owed the deceased the duty not to render unsafe the place provided in which to work at his employment, and this duty could not be delegated to an independent contractor, thereby avoiding responsibility. Morton v. Dry Goods Co., 126 Mo.App. 377; Sachenritz v. Biscuit Co., 78 Mo.App. 144; Burs v. Railroad, 129 Mo. 41; Hardler v. Buck, 136 Mo. 3; Curtis v. McNair, 173 Mo. 280; Chariton v. Railroad, 200 Mo. 434. (5) It is the settled law that a railroad company cannot, by any form of agreement, whether it be made with another company, or with an individual, relieve itself from responsibility for the non-performance of the duties which are incident to the discharge of its functions as a common carrier. Speed v. Railroad, 71 Mo. 309; Railroad v. Hahn, 118 Pa. 561, 12 A. 474; note to Anderson v. Fleming, 66 L.R.A. 119; 26 Cyc. 1564; Boucher v. Railroad, 13 L.R.A. 1177, and note; 1 Thompson on Negligence, secs. 636, 669, 672.
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 the 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, Revised Statutes 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 seven thousand dollars, 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, and 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, and that it was the further duty of the defendant, its servants and employees to run, conduct and manage its car or cars over its said road and switches so that the place and places provided for its employees 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 and employees, negligently and carelessly piled upon said car and against the standards upon one side of said car, to such a height and without securing the same, that the said standards were not sufficiently strong to withstand the weight or pressure of said poles, and that said defendant, its agents, servants and employees carelessly, recklessly and unskillfully moved, run, conducted or managed said car upon which said poles had been so negligently, carelessly and unskillfully piled, as aforesaid, by means of levers, pries or instruments known as pinch bars, and that said prying or pinching of said car caused the same to shake or rock and increase the pressure on said standards so that the said standards gave way and broke, and the poles fell upon the plaintiff's husband and killed him, to her damage in the sum of ten thousand dollars.
The second count charges the relation of the parties, as in the first, and that it was the duty of the defendant to exercise reasonable care to furnish the deceased a safe place to work. But the defendant, in disregard of its duty, carelessly and negligently piled the telegraph poles upon one side of its car and against the standards, and without in any manner securing or bracing the same, so that said standards were not sufficiently strong to withstand the weight and gave way and fell upon plaintiff's husband and killed him.
The answer is a general denial, and also a special defense alleging that the death of plaintiff's husband, if caused by the negligence of any one, was caused by the negligence of an independent contractor, who at the time was engaged in moving the poles referred to in plaintiff's petition from one car to another.
The defendant maintains that plaintiff's cause of action is not given by section 5425. This is one of the material points in this case. In Casey v. Transit Co., 205 Mo. 721, 103 S.W. 1146, our court said: "The right of action given in section 2864 (now section 5425) is for a death caused by the negligence of the servant operating the defendant's instrument of transportation, whether it be a locomotive, car, train of cars, steamboat, its machinery, stage coach or other public conveyance, while the right of action given in the two sections next following is for a death caused by the negligence of the defendant, which may mean his own negligence, as for instance, in furnishing an unsafe vehicle, or it may mean his negligence through his servant in some particular other than the particular specified in said section."
And in Higgins v. Railroad, 197 Mo. 310, 95 S.W. 863, the court said: "To our mind the purpose of this statute was to allow damages for the negligent acts of the servants managing, running and controlling...
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