Rohback v. Pacific R.R.

• Decision Date: 31 January 1869
• Citation: 43 Mo. 187
• Parties: CHARLES ROHBACK, Plaintiff in Error, v. THE PACIFIC RAILROAD, Defendant in Error.
• Court: Missouri Supreme Court

43 Mo. 187

CHARLES ROHBACK, Plaintiff in Error,

v.THE PACIFIC RAILROAD, Defendant in Error.

Supreme Court of Missouri.

January Term, 1869.

Error to First District Court.

The cause originated in the Cole County Circuit Court. The petition alleges that in April, 1866, the plaintiff was rightfully upon the track of defendant, at a point within the city of Jefferson, and that a locomotive and train of cars of defendant then and there stood at rest on said track; and that the agents and servants of defendant, without ringing a bell or giving any other signal, negligently and carelessly put the said locomotive and train in motion, and negligently and carelessly ran the same over plaintiff, by which both his legs were fractured and he was otherwise injured, and for which a judgment for $5,000 is asked.

The answer denies all the material allegations of the petition, and also avers that the plaintiff was, at the time of receiving the injury, a servant and employee of defendant, and denies his right of action against defendant.

The plaintiff then files his replication, which denies the averment of the answer which charges that the plaintiff was a servant of defendant. The evidence on the part of the plaintiff shows that the plaintiff was, at the time of receiving the injury, a servant of, and at the time in the actual employ of, defendant. The testimony also tends to show that at the time of the injury the plaintiff, with divers other servants of defendant, was at work on the main track and switches of defendant, digging and shoveling dirt, between Jefferson and Madison streets, in said city (which part of the track is upon what is called the “yard” of defendant); and that other servants of defendant were, at about the same time and place, engaged in “making up” a train, and in doing so had, just immediately before the accident, passed up and down once or twice, or perhaps oftener, on the tracks where plaintiff and others were at work; and that finally, in backing the train, the plaintiff, failing to get out of the way, was run over by it and received very severe injuries.

The case was taken by writ of error to the First District Court, where the judgment of the Circuit Court was reversed, and the plaintiff below brings the case to this court by writ of error.

Budd, Ewing & Smith, for plaintiff in error.

I. The plaintiff in error is entitled to recover at common law. (Chamberlain v. W. & W. R.R., 11 Wis. 238, 250.) This construction of the law is aided by statute. (Gen. Stat. 1865, p. 342, § 38, and p. 601, § 2.) These statutes make no distinction against employees, but by the words “any person” include equally servants and strangers. (Schultz v. Pacific R.R., 36 Mo. 13.) The statute last above cited was probably intended rather to designate the persons to whom the right of action should survive, and to limit the amount of damages, than as a reward offered to the wife of the injured employee to let her wounded husband die of his wounds. The rule which denies to employees the right of action against their superior for injuries caused by the negligence of fellow-servants is said to be founded upon public policy, or upon an implied contract by the employee to assume the risk of such injuries, or upon the presumption of contributory negligence by the injured fellow-servant. But it is submitted the courts will not maintain a public policy which is not recognized by the Legislature of the State, and is inconsistent with statute law. Contributory negligence, as other matters of defense, should be established by evidence. The case of McDermott v. Pacific Railroad, 30 Mo. 115, was decided without reference to the said statutes. And the injury for which the action was brought occurred before said acts were passed.

II. But the rule in the McDermott case will not defeat the plaintiff in error of his action against the Pacific railroad. McDermott was a brakesman on a train of cars which was precipitated into the Gasconade river; and he was there injured, as he charges, by the negligence of the engineers, servants, etc., of the Pacific railroad. The rule in that case, as defined by Judge Holmes, is, substantially, that the superior is not liable to answer in damages to a servant for injuries occasioned by the negligence of a fellow-servant, “whilst engaged in the same general employment and under the same employer or master.” (36 Mo. 28-9.) And the case was decided on the authority of Farwell v. B. & W. Railroad, 4 Met. 49, which was an action by an engineer against the B. & W. railroad for injuries caused by the negligence of a switch-tender. Shaw, C. J., cautioned against the extension of the rule, but thought the engineer within its terms, because the “separate duties” of the engineer and switch-tender all “tended directly to one and the same purpose-- that of the safe and rapid transmission of the trains.” In both these cases, it seems, the general employment of the negligent and injured employees was understood to be the transmission of the trains, “and to this their separate duties directly tended.” This is the extent to which the rule restricting the principle respondeat superior had obtained in Missouri. And in view of the statute extending that principle, courts will not, perhaps, further restrict it. The plaintiff in error is not barred by the rule as here construed. He was a laborer on an extra side track, which was out of repair, and upon which a train of cars should not have been run at the time. His special or “separate duties” did not “tend directly to the safe and rapid transmission of the train” then in charge of the engineer by whose negligence he was injured. They were not engaged in the same general employment. (Sto. Ag. § 453 f.; Young v. N. Y. Central R.R., 30 Barb. 229; Gillenwater v. Madison & I. R.R., 5 Port., Ind., 339; Fitzpatrick v. New Albany & Salem R.R., 7 Port., Ind., 436.)

III. By General Statutes 1865, p. 342, § 38, it is made the duty of a railroad corporation to cause a bell to be rung continuously on a locomotive when approaching a public crossing in a city, and within the distance of eighty rods of such crossing; and for each neglect of that duty a penalty is imposed on the corporation. The omission to cause the bell to be rung seems to be negligence in the corporation. A corporation is liable in damages to employees for injuries caused by its own negligence. The neglect to cause the bell to be rung on any part of the space included within the eighty rods was an omission of duty for which the corporation is liable to a penalty; for the bell must be kept ringing. For omission of duties imposed by statute, the party aggrieved has an action at common law. (Sedg. Dam. 572 and note, § 564.) The evidence shows that the plaintiff in error was within much less than eighty rods of the aforesaid Monroe street crossing. He was also at or near the said Jefferson street crossing, on said Pacific railroad. No train of cars could legally approach or pass the place where he then was without ringing a bell on the locomotive, which duty was omitted, and he sustained damages by reason of that neglect.

IV. But the statute expressly provides that the corporation “shall be liable for all damages which shall be sustained by any person by reason of such neglect.” This statute extends the principle or legal maxim respondeat superior; for the words “any person” include employees. (Schultz v. Pacific R.R., 36 Mo. 13, 28-31.) This suit is properly brought as an action at common law. (1 Chit. Pl. 132, 142; Sedg. Dam. 572, above cited.)

E. L. King & Bro., G. T. White, and John Doniphan, for defendant in error.

The plaintiff, having been a servant of the defendant at the time of receiving the injury, cannot, at common law, recover without showing that the injury was willfully and wantonly inflicted, or that the company did not exercise ordinary care and diligence in the selection of its servants, nothing of which is claimed in this case. (30 Mo. 115; 4 Met. 49; 10 Cush. 228; 6 id. 75; 9 id. 112; 3 id. 270; 6 Barb. 231; 6 Hill, 592; Redf. Rail. 387; 1 McMullan, 385; 11 Iowa, 421; 8 Ohio, 249; 10 Ired. 402.) The question, then, is whether there is any statute law of this State under which he can recover. The case of Schultz v. Pacific Railroad, 36 Mo. 13, is cited and commented on a good deal as being directly in point in this case. We submit that it is not in point at all. The statute under which Schultz recovered (Gen. Stat. 601, § 2) gives a right of recovery only in cases where death ensues; and the words “person” and “passenger” are so used as to show that it was evidently in the minds of the law-makers to give protection to both classes, persons and passengers. And even in that case, where the words ““person” and “passenger” were both used, and used disjunctively, it was to some extent a question for argument by the court, and in the mind of the learned judge, whether it was really the intention of the Legislature by that statute to change the doctrine of the common law on that question. There is no similarity whatever between the case of Schultz and this one, except that both were servants of the road at the time of being injured. But it is contended that this suit may be remanded under the thirty-eighth section of chapter 63, General Statutes, and that, too, simply because the word “person” is used in that section instead of the word “passenger,” wherein it speaks of who may recover under it. The sole object and intention of the Legislature was to give an additional or better protection to the traveling public at the crossing of a public road or street and a railroad track, and no argument could make it plainer that such was the intention than the very wording of the...