Regan v. St. Louis, Keokuk & Northwestern Railway Co.

• Decision Date: 19 December 1887
• Parties: Reagan, Plaintiff in Error, v. The St. Louis, Keokuk & Northwestern Railway Company
• Court: Missouri Supreme Court

6 S.W. 371

93 Mo. 348

Reagan, Plaintiff in Error, v. The St. Louis, Keokuk & Northwestern Railway Company

Supreme Court of Missouri

December 19, 1887

Error to Hannibal Court of Common Pleas. -- Hon. Theo. Brace Judge.

Reversed and remanded.

R. M Lakenan for plaintiff in error.

(1) The plaintiff, a water-boy and tool-keeper for the construction train, being subject to the hiring and discharge of the foreman of said construction train, the said foreman was the vice-principal of the defendant, and the defendant is liable to plaintiff for injuries sustained by the negligence of said foreman. Brothers v. Cartter, 52 Mo. 372; Gormly v. Iron Works, 61 Mo. 492; Whalen v. Centenary, 62 Mo. 326; Marshal v. Schricher, 83 Mo. 306; Moore v. Railroad, 86 Mo. 588; Stephens v Hannibal, 87 Mo. 221; McDermott v. Railroad, 87 Mo. 285; Dowling v. Allen, 88 Mo. 263; Hoke v. St. Louis, 88 Mo. 360. As to youth, see Sherman v. Hannibal, 72 Mo. 62. (2) The failure of the defendant to provide rules, or signals, or systems, to be observed by engineers in operating its construction trains, was an efficient cause of the injury, for which the defendant is liable. Shear. & R. Negligence (3 Ed.) p. 123, sec. 93, citing Vose v. Lancashire, 2 Hurl. & N. 728. (3) The engineer was not a fellow-servant with the section foreman (Lewis v. St. Louis, 59 Mo. 495; Hall v. Railroad, 74 Mo. 298), and, therefore, he was not a fellow-servant with plaintiff.

Anderson & Foreman with P. Trimble for defendant in error.

(1) It is wholly immaterial whether the foreman of the construction force was, at the time of the accident, a vice-principal, or not, of defendant, because the work required of plaintiff was clearly within the ordinary line of his duty, and, therefore, whatever danger there was connected with it was one of plaintiff's assumed risks as tool-keeper. The plaintiff was a minor, but not of tender years. He only lacked three months of being seventeen years old. He was of sufficient age to comprehend every ordinary danger connected with his employment. He was at the age of discretion. His minority cannot constitute a relevant fact in this case. Shear & Redf. on Neg. (2 Ed.) secs. 50, 97. (2) In this case the accident occurred from the jar and motion caused by the conjunction of the cars in process of making up the train. The joining of cars for such purpose is so common, necessary, and frequent, especially in the case of freight trains, that it cannot be said to involve any extraordinary risks, and no warning of such fact of joining is required by law, or is reasonably necessary or practicable. Shear & Redf. on Neg., sec. 93. (3) In answer to third point in brief of plaintiff, the decisions referred to by him do not touch this case. The engineer, or other operatives of the moving engine and cars, in the matter of joining the cars, had no duty to perform that could make them vice-principals, and, therefore, their negligence, if any, could not give plaintiff any right of action against defendant. Loughlin v. State, 11 N.E. (N Y.) 371.

OPINION

Black, J.

There was a judgment for the defendant in this case on a demurrer to the petition. To review that ruling, the plaintiff sued out this writ of error. The petition is lengthy, and we extract from it the following facts:

The plaintiff, a boy seventeen years old, was in the employ of the defendant. It was his duty to carry water for a gang of men engaged in repairing the roadbed, and to take charge of the tools used by them. They were all under the direction of a foreman. The foreman, laborers, and plaintiff traveled in a caboose-car attached to a freight train, composed of four or five cars. When the train stopped at a point near West Quincy, the engineer, fireman, and a brakeman, who were not under the control of the plaintiff's foreman, detached the engine, leaving the train standing on the main track, and went north, with a view of taking some freight cars from a switch and placing them in the train. In the meantime plaintiff and his foreman examined the track south of the train, the caboose being at that end of the train. The foreman directed the plaintiff to go back and notify the laborers to get out with their tools and remove snow from the track. The boy obeyed the instructions, and assisted in getting the tools out of the car. After the men and tools were out, and just as he was getting off the rear platform, the engineer and brakeman shoved some cars down the main track, and against the standing train, knocking the plaintiff off the platform, and the caboose ran over him. The cars were shoved down the main track by the manoeuver known as "kicking." Plaintiff's leg and arm were broken. The petition, then, among other things, contains the following allegations: "Plaintiff says that, until felled by said cars, as described, he was not aware of their approach, and had no reason to be aware of their approach. Plaintiff says that he was in nowise guilty of any negligence...