Renfro v. Chicago, Rock Island & Pacific Ry. Co.

• Decision Date: 30 April 1885
• Citation: 86 Mo. 302
• Court: Missouri Supreme Court
• Parties: RENFRO v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

86 Mo. 302

RENFRO

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Grundy Circuit Court.--HON. G. D. BURGESS, Judge.

REVERSED.

M. A. Low for appellant.

(1) The dangers to be apprehended from repairing cars on tracks used for making up trains, were open and obvious. They were as patent to Renfro as to Best, consequently all such hazards were assumed by the former. Cagney v. Ry. Co., 69 Mo. 416; Smith v. Ry. Co., 69 Mo. 32. (2) Having acquiesced in defendant's customary mode of doing the business, neither Renfro, nor those claiming through him, had the right to complain that it was not the proper way to do it. By acquiescing in it he made it his way. He had no right to demand that the company should exercise more care for his safety than he exercised for himself. Priestly v. Fowler, 3 M. & W. 1; I., B. & W. R. Co. v. Flanigan, 77 Ill. 365; Penna. Co. v. Lynch, 90 Ill. 333; Baylor v. Ry. Co., 11 Vroom, 23; Dillon v. U. P. Ry. Co., 3 Dill, 319; Hughes v. Ry. Co., 27 Minn. 137; Sweeney v. Ry. Co., 57 Cal. 15; Porter v. Ry. Co., 71 Mo. 67. (3) Best was not a superintendent. He was a mere foreman. He had power to hire and discharge car repairers. In respect to that duty he was a vice-principal; but he is not charged with any neglect of duty in employing and discharging hands. A foreman is the fellow servant of the men engaged in working under his directions. O'Conner v. Roberts, 120 Mass. 419; McCosker v. Ry. Co., 84 N. Y. 77; Zeigler v. Day, 123 Mass. 152; Holden v. Ry. Co., 129 Mass. 268; Beaulieu v. Ry. Co., 48 Me. 291; Gallagher v. Piper, 16 C. B. (N. S.) 669, 694; Wilson v. Merry, L. R. 1 Scotch App. 326; Howells v. Landore Steel Co., L. R. 10 Q. B. 62; Brown v. Ry. Co., 27 Minn. 162; Hoke v. Ry. Co., 11 Mo. App. 575. (4) The court erred in giving plaintiff's fourth instruction. The circumstances connected with the fatal injury should not have been considered in estimating the damages. A railway company is not liable in punitory damages in such a case. Steinbach v. Winfrey, -- Mo. --; Morgan v. Durfee, 69 Mo. 469; Porter v. H. & St. J. Ry. Co., 71 Mo. 66; Cleghorn v. N. Y. C. & H. R. Ry. Co., 56 N. Y. 44.

R. A. Debolt for respondent.

(1) It was sufficient to charge that Best, the agent of defendant, ordered the deceased to repair a car in a place which he knew to be dangerous. Mack v. Railroad, 77 Mo. 234; Schneider v. Railroad, 75 Mo. 293. (2) The evidence fails to show that the danger on the occasion of the injury was any more obvious or likely to occur than on any former occasion. The deceased had been ordered by his superior, Best, the agent of the company, to repair the crippled car on track number two, Best knowing the danger to which he would be subjected, and in obeying he had the right to rely for his safety on the supposed superior judgment of Best, who gave the order and continue in the work as usual. “It cannot be said” that in so doing “he was guilty of contributory negligence in pursuing his labor when hurt.” Flynn v. K. C., St. Jo. & C. B. Ry. Co., 78 Mo. 195, 209, 210; Ford v. Fitchbury Ry. Co., 110 Mass. 240, 255; Lewis v. St. L. & I. M. Ry. Co., 59 Mo. 495; Conroy v. Vulcan Iron Works, 62 Mo. 38, 39; Keegan v. Kavanaugh, 62 Mo. 230; Snow v. Housatonic Ry. Co., 8 Allen, 450; Fernandes v. Sac City Ry. Co., 52 Cal. 49, directly in point; also, 65 Mo. 521. (3) It is the duty of an employer to provide a safe place for his employes while at work. Whalen v. Centenary Church, 62 Mo. 328; Keegan v. Kavanaugh, 62 Mo. 232. (4) Although the deceased may have been guilty of negligence in working in a dangerous place without a watch, yet, it was gross negligence on the part of Hoke, after knowing the danger to which the deceased had exposed himself, to permit the switchman under his control to shove the cars in from the north, through which the injury was caused. Hoke's negligence was subsequent to that of deceased, and he knew of the danger of deceased a sufficient time to have avoided the injury by simply preventing the engine and men from going to the north end of the track. Rains v. Railroad, 71 Mo. 167; Strauss v. Railroad, 75 Mo. 185; Isabel v. Railroad, 60 Mo. 482; Maher v. Railroad, 64 Mo. 267. (5) Instructions numbered one and two, given for plaintiff, were proper. Brothers v. Carter, 52 Mo. 374; Gormly v. Vulcan Iron Works, 61 Mo. 494; Harper v. Railroad, 47 Mo. 579. (6) The deceased was not a fellow servant of Best, nor of Hoke. McDermott v. Railroad, 74 Mo. 13; Hall v. Railroad, 74 Mo. 298; Long v. Railroad, 65 Mo. 225; Porter v. Railroad, 71 Mo. 77. (7) Where a superintendent of a defendant has entire control over the work, and the laborers engaged in it, the defendant is liable for injuries to the employes, occurring through the negligence of such superintendent. Lewis v. St. L. & I. M. Ry. Co., 59 Mo. 495; Whalen v. The Centenary Church of St. Louis, 62 Mo. 326; Cook v. The Han. & St. Jo. Ry. Co., 63 Mo. 397. (8) Before defendant can charge that deceased was negligent in not complying with defendant's rules in doing its work, it must show that he knew of such rules, and this it has failed to do. No witness testified that he knew of such rules. A., T. & S. F. Ry. v. Plunkett, 25 Kas. 195. (9) The question of negligence is one of fact for the jury, and was, in this case, fairly submitted to them on the instructions, and the finding, which was for the plaintiff, should not be disturbed. Harper v. Ry. Co., 47 Mo. 576; Stoddard v. Railroad, 65 Mo. 521; Smith v. Railroad, 61 Mo. 591, 592; Buesching v. The St. L. Gaslight Co., 73 Mo. 233; Barton v. Railroad, 52 Mo. 253; Flynn v. Railroad, 78 Mo. 211; Hoyt v. Hudson, 22 Am. Rep. 719; Fernandes v. Sac City Ry. Co., 52 Cal. 49, 50, 51, 52; Brown v. Railroad, 50 Mo. 466.

BLACK, J.

The plaintiff's husband was in the employ of defendant, as car repairer, at its yards in Trenton. While thus engaged he was run over and injured, from which he died. This is a suit for damages therefor. The petition alleges that defendant's servants, having in charge repairing of cars, negligently directed Renfro to repair a car standing on track number two, and while obeying this order, defendant's servants carelessly backed, or run, a train of cars over him. Six witnesses, five of whom were car repairers, and one a fireman, all engaged, at the time, in the yards, testified in behalf of plaintiff. Their testimony is all that was offered. Whether this evidence made out a prima facie case is the real question for consideration.

There was a track in the yards running north and south, designated as number two. West of this, and in the western part of the yards, was a repair track. The evidence, also, shows that Best was foreman of the car repairers, and had charge of that work. Hoke was yard master, and had charge of making up trains, handling cars in the yards, and control of the switchmen. Winters and Sires, car repairers, were at work on the caboose track, when the former and deceased went from there to fix a car, the location of which is not given. They could not fix this car where it was, and they directed a switchman to set it on the repair track. Best, the foreman, then directed Winters and the deceased to repair a crippled car on track number two. They then left Best near the shops and went a hundred, or one hundred and fifty yards to the car to be repaired. It does not appear where Best was at the time of the accident.

Winters alone gives an account of what transpired at that place. It is as follows:

“I went under the car and was at work fixing it, while Renfro stood beside the car, watching. The yardmen shoved in a car on the south end of track number two. A colored boy was on the car, and some one said, ‘stop it,’ and he did so. Renfro then got under the crippled car with me, and we both went to work to fix it. I do not know which way the men went after showing in the car on the south end of number two. Daniel Hoke was yard master, and was on duty at the time. We saw him from fifty to one hundred yards south of us when the car was set in on track number two. I do not know what he did, or where he went, after that. I did not see him any more until after the accident. Some time after that, some cars were shoved in from the north upon track number two, without any warning to us, and while we were still at work under the car fixing the drawhead, which was out of order. The cars ran against the car we were still at work under, and caused it to run over Renfro, inflicting injuries from which he died the same day. There were ten or twelve cars coupled to, and north of that, under which we were at work at the time of the injury. We kept watch until a car was put in on south end of track. We then thought Hoke saw us, and went to work without a watch. The rules required us to flag or watch. We did not tell the yardmen we were going to work on this car. We knew Hoke saw us when the car was set in on the south end. Renfro was then standing by the car, where he could not help seeing him. I was under the car at the time. The rules required us to tell the yard master and crew when we went under the cars to repair them. We did not do so this time. Yerian was near the car which was set in from the north, and...