Sams v. St. Louis & M. R. Co.

• Citation: 73 S.W. 686,174 Mo. 53
• Court: United States State Supreme Court of Missouri
• Decision Date: 20 March 1903
• Parties: SAMS v. ST. LOUIS & M. R. CO.

73 S.W. 686

174 Mo. 53

SAMS v. ST. LOUIS & M. R. CO.

Supreme Court of Missouri.

March 20, 1903.

SERVANTS — INJURIES — FELLOW SERVANTS—NEGLIGENCE—STREET RAILROADS— FELLOW SERVANT ACT.

1. A car starter, having authority to direct motormen and conductors of electric cars to start from a terminus of a street railway, and whose authority to regulate the time space between cars extends all along the line, is a fellow servant of such employés.

2. An electric car stopped at a terminus, and the conductor stepped off to reverse the trolley. The company's car starter, seeing that the wheels had not cleared a switch, directed the motorman to move up. The latter set the apparatus, and as the car did not move, owing to the fact (which neither he nor the starter noticed) that the trolley was off, he started towards the other end of the car, where he was to stand on the return trip, without closing the apparatus. When the conductor placed the trolley on the wire, the car shot forward and injured him. Held, that the negligence was in the act of the motorman in attempting to execute the order without looking to see what the conductor was doing, and in leaving the apparatus without closing it against the current.

3. If a corporation and its servants, who in fact are engaged only in operating a street railroad, are not covered by the fellow servant statute, then the fact that the charter of the corporation authorizes it to own and operate a trunk line steam railroad will not bring them within the statute, or estop the corporation from showing the fact.

4. Rev. St. 1899, § 2873, which provides "that every railroad corporation owning or operating a railroad in this state shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof," does not apply to street railroads.

Gantt, Brace, and Burgess, JJ., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Franklin Ferris, Judge.

Action by Robert L. Sams against the St. Louis & Missouri Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Suit for damages for personal injuries. The petition states that the defendant is a railroad corporation owning and operating a railroad from a point named in the city of St. Louis to a point named in St. Louis county, and is engaged in carrying passengers and freight by means of cars propelled by steam and electricity; that on each car the defendant has two employés—a motoneer, whose station is on the front platform, where he manipulates the machinery through which the electric power is applied, and a conductor, who has certain other duties to perform; that there was also at the time and place of the accident a third employé of the defendant, whom the plaintiff calls a "car dispatcher," whose station was at the eastern terminus of the road, who had authority to direct the movements of the car, and to command the motoneer and conductor in reference thereto; that upon the occasion in question the plaintiff was the conductor on one of these cars, one Horn was the motoneer, and Hogan the car dispatcher; that Horn was without skill or training; that on January 27, 1898, at the eastern terminus of the road, at Sixth and Locust streets, in St. Louis, while the plaintiff, in the due discharge of his duties as conductor, was on the ground, in front of the car, in the act of shifting the trolley to reverse the direction, the car, through the negligence and lack of skill of the motoneer and the negligence of the car dispatcher, was suddenly projected against the plaintiff, crushing him against another car which was standing on the track, and inflicting on him great bodily injuries. Specifications of the conduct of the motoneer and car dispatcher constituting the alleged negligence are set out in the petition, as likewise are the particulars of the injuries suffered by the plaintiff. The answer was a general denial, contributory negligence of the plaintiff, and a special plea that defendant was a street railroad corporation, organized for the purpose and engaged in the busines only of conducting a street railroad, and the plaintiff, the motoneer, and the car dispatcher were fellow servants employed in operating the car, and therefore defendant was not liable to plaintiff for the negligence of his fellow servants. The reply was a general denial.

On the trial plaintiff introduced in evidence the charter of the defendant, by which it appeared that defendant was incorporated as an ordinary railroad company under article 2, c. 42, Rev. St. 1889 (now article 2, c. 12, Rev. St. 1899); also evidence showing that it had claimed and exercised the right of eminent domain to condemn private property for a part of its right of way outside of the city; that its road in the city was in the city streets, and of the same character as ordinary street railroads, whilst in the country it was partly of that character and partly of the character of the ordinary steam railroads; that the cars of defendant were moved by electricity under the ordinary trolley system, and for the carrying of passengers only, except that defendant had one car, propelled in like manner as its passenger cars, which was used to carry the United States mails, and one-half of it was arranged to carry freight or express packages, and was so used; that from its eastern terminus at Sixth street, west to Forty-First street, the road was used jointly for the same purpose by defendant and a street railway company called in the evidence the Suburban. The car on which the plaintiff was conductor was an ordinary street car, and was being used as such, like the cars of the Surburban Company operating over the same road, only the defendant's car was red, and the Suburban's yellow. There was evidence tending to show that Hogan, the car starter, had authority to direct the conductor and motoneer when to start, and that his authority to regulate the time space between cars applied not only to the starting at the eastern terminus, but extended all along the line, and that in that matter the conductors and motoneer were ordered to obey him; that if his orders were disobeyed he would report the offender, who was therefor liable to be suspended. There was no evidence to support the charge that the motoneer was inexperienced or deficient in skill. The evidence as to the accident tended to show as follows: The road was a double track, ending at Sixth street on Locust. The mode of operating was: The cars would come east on the south track. The machinery would be reversed without turning the cars, and they would be passed over a switch to the north track, on which they would return west. This car came in a little late, and Hogan, the car starter, spoke angrily to the motoneer, asking him where he had been. The car stopped, and the conductor stepped off to reverse the trolley; passing on the south side, holding the cord. Hogan was standing on the north side, and, seeing that the rear trucks of the car had not cleared the switch, motioned or called to the motoneer to move up. The motoneer, as if in obedience to that direction, set the apparatus to receive the electric current, but the car did not move, owing to the fact (which neither the motoneer nor Hogan seemed to have noticed) that at that moment the conductor was in the act of reversing the trolley, and therefore the connection of the machinery with the wire overhead was broken. The motoneer, still seeming not to see what the conductor was doing, took off the controller, leaving the apparatus open to receive the current, and started to the other end of the car, where he was to stand when going west. His duty, under the circumstances, was to have closed the machine against the admission of the current until the conductor had readjusted the trolley; but this he neglected to do, and on the instant the trolley touched the wire the car shot forward and crushed the plaintiff against one of the Suburban cars which was standing on the track, and inflicted on him great injuries.

At the close of the plaintiff's evidence the court, at the request of the defendant, gave an instruction to the effect that the plaintiff was not entitled to recover. Thereupon he took a nonsuit, with leave, and, his motion to set the same aside having been overruled, brings this appeal.

C. A. Schnake and O. J. & R. Lee Mudd, for appellant. McKeighan & Watts and Robt. A. Holland, Jr., for respondent.

VALLIANT, J. (after stating the facts).

1. There is nothing in the case to justify a conclusion that the car starter was a vice principal of the defendant. He had certain duties to perform, and in that his word was the word of the master to his fellow servants; and if they refused to obey him in that particular they were, on being reported to the manager, liable to be suspended. But each of the other servants had his peculiar duty to perform, and in which his word was that of the master. The conductor, by word or signal to the motoneer, orders him to start or stop the car; and if he should refuse to obey, and the fact was reported to the manager, doubtless he would be disciplined. And there may be events in the operation of the car when the motoneer may be in duty bound to give orders to the conductor, which he is to obey. But it would never be contended that the conductor and motoneer were not fellow servants. And so is a car starter, who has no more authority than this man had, the fellow servant of the conductor and motoneer. Although the motoneer, in seeming obedience to the order of the car starter, did a negligent act, yet the car starter did not order him to do what he did. The order was to move the car forward so as to clear the switch. That was a proper thing to do, and could have been done in a proper manner. The argument is made that the order should not have been given at the instant the conductor was in the act of readjusting...