Rowland v. Missouri Pac. Ry. Co.

• Decision Date: 08 February 1886
• Citation: 20 Mo.App. 463
• Parties: N. C. ROWLAND, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

20 Mo.App. 463

N. C. ROWLAND, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

February 8, 1886

APPEAL from Jasper Circuit Court, HON. NOAH M. GIVAN, Judge.

Affirmed.

The case is stated in the opinion.

ADAMS & BOWLES, for the appellant.

I. The only act of negligence complained of by plaintiff is that of Neilson, the boss or foreman of a gang of men engaged in the repair of defendant's track. They were fellow-servants and in the absence of any negligence in the employment of said Neilson, defendant is not liable for any injury caused by his misfeasance. Hoke v. R. R., 11 Mo.App. 574; Rains v. R. R., 71 Mo. 164; Marshall v Schricker, 63 Mo. 308; Lee v. Bridge and Iron Works, 62 Mo. 565; Summerville v. Fish, 117 Mass. 312; Daubert v. Pickel, 4 Mo.App. 590; Hamilton v. I. M. Co., 4 Mo.App. 565; Thompson on Negligence, sect. 34, 38, and cases cited; Whart. Negl sect. 224; Sher. and Redf. Negl., sect. 86.

II. The defect of which the plaintiff complains, i. e., that there was one spike yet remaining in the rail, was as patent to him as to any one else, and having failed to observe it he cannot now complain of an injury caused by his failure to do so. Wright v. R. R., 25 N.Y. 565; Warner v. R. R., 39 N.Y. 471; Noyes v. Smith, 28 Vermont 63; Gilman v. R. R., 10 Allen (Mass.) 233.

III. There was no evidence to support the claim of the incompetency of the foreman, and plaintiff withdrew claim at the trial.

E. O. BROWN, E. C. DEVORE, for the respondent.

I. The general tendency of the later decisions in this country, both federal and state, is to reject or qualify and limit the rule, exempting the master from liability to his servants for an injury caused by the negligence of another servant in his employ; and to hold that the question of liability must be determined on the relation of the servants, the one causing the injury and the other receiving the injury, sustain to each other and to their common employer or principal. R. R. v. Fort, 17 Wallace (U. S.) 368; Ross v. R. R., U. S. Sup. Ct., Dec. 8, 1884, not yet reported; R. R. v. Collins, 2 Duer (Ky.) 114; R. R. v. Bowles, 11 Albany Law J. 110; Corcoran v. Holbrook, 59 N.Y. 517; Mullen v. Steamship Co., 78 Pa.St. 26; R. R. v. Stevens, 20 Ohio 416; Brothers v. Carter, 52 Mo. 352; Whalan v. Centenary Church, 62 Mo. 514; Lydon v. Marion, 3 Mo.App. 602; Devany v. Vulcan Iron Works, 4 Mo.App. 236; Ryan v. Bagsley, 50 Mich. 179; R. R. v. Fox, 31 Kan. 586; R. R. v. May, 108 Ill. 288.

II. As corporations can only act through superintending officers, the negligence of those officers, with respect to other servants, are the negligences of the corporation. Wharton's Law of Negligence, sect. 232, a; R. R. v. Keary, 33 Ohio St. 201.

III. When the master clothes one of its servants, whatever may be his rank or station, with authority to control and direct, employ and discharge servants in his employ, such servant or agent will be regarded as the representative of the master, and not simply as a fellow servant with those he controls and employs in the same general business. Laning v. R. R., 49 N.Y. 521; Corcoran v. Holbrook, 59 N.Y. 517; Filke v. R. R., 53 N.Y. 549; Brickner v. R. R., 2 Lansing (N. Y.) 508.

IV. Knowledge of the risk does not prevent a recovery, if the act causing it was done by the express command of the master, or some person whom the master had placed in command over him; because if he was directed to do the act, and the doing of it did not necessarily expose him to danger, he cannot be said to have had the particular risk in contemplation, and did not assume it.

V. The record shows every essential fact necessary to constitute liability.

HALL J.

This is an action to recover for personal injuries sustained by plaintiff while engaged in the service of defendant as a section hand.

The evidence fully supported the declarations of law given in the case, it having been tried by the court, sitting as a jury.

The only question is, as to the correctness of those declarations of law. They are as follows:

" 1. If the court, sitting as a jury, finds, from the evidence, that one Thomas Neilson was defendant's section foreman and was superintending, for the defendant, the work of taking up and removing the rail in question, and had entire control and charge of, with power to employ and discharge, section hands, and that the plaintiff was subject to his orders and directions, then the said Thomas Neilson was not a fellow-servant with the plaintiff within the meaning of the law, and the said Thomas Neilson's acts and conduct in connection with said work were, and are, the acts and conduct of defendant, so far as this case is concerned."

" 2. The court declares the law to be, if the court believes from the evidence that at the time plaintiff was injured he was in the employ of the defendant, as a section hand, and he was in charge of and under the direction of Thomas Neilson, a section foreman, also in the employ of the defendant; that it was the duty of said section foreman to have charge of and direct the work and the manner in which plaintiff was engaged when he was injured; that it was the duty of plaintiff to obey the orders and directions of the section foreman in the performance of the work of removing rails from defendant's railway at the time and place he was injured; that while so engaged, and in obedience to the directions and commands of defendant's section foreman, plaintiff picked up a rail, and was assured by the section foreman, when enquired of if it was free and clear, that it was, and to throw it out, and that it was not free and clear, and by reason thereof, rebounded and flew back upon plaintiff and cut off one of his toes, then plaintiff is entitled to recover against the defendant."

The objections urged by defendant to the declarations of law are: first, that, under the facts therein assumed, Thomas Neilson was a fellow-servant of plaintiff's; second, that the fact that one spike remained in the rail was as patent to plaintiff as to any one else, and that the plaintiff having failed to observe the same, could not complain of any injury caused by such failure.

I.

In Marshall v. Schricker et al. (63 Mo. 308), Judge Hough, who delivered the opinion of the court, reviewed many of the Missouri cases up to that time upon this question, and quoted, in conclusion, with approval, the following language of the opinion in Malone, adm'r, v. Hathaway (64 N.Y. 5): " Where a superior servant employs and discharges the subalterns, and the principal withdraws from the management of the business, or the business is of such a nature that it is necessarily committed to agents, as in the case of corporations, the principal is liable for the neglects and omissions of duty of the one charged with the selections of other servants, in employing and selecting such servants, and in the general conduct of the business committed to his care."

The doctrine enunciated in Marshall v. Schricker et al. supra, has never been limited in this state. It is not necessary for us, in this case, to decide whether it has been or should be extended. Under its authority we hold that under the facts, assumed in the declarations of law, the existence of which was submitted to the court sitting as a jury, Thomas Neilson was...