Schlereth v. Missouri Pac. R. Co.

• Decision Date: 01 July 1892
• Citation: 19 S.W. 1134
• Parties: SCHLERETH v. MISSOURI PAC. R. CO.
• Court: Missouri Supreme Court

19 S.W. 1134

SCHLERETH v. MISSOURI PAC. R. CO.

Supreme Court of Missouri, Division No. 2.

July 1, 1892.

INJURY TO EMPLOYE — FELLOW SERVANTS — DAMAGES — OBJECTIONS TO EVIDENCE.

1. The engineer of a railroad train and a track repairer, employed on the same road, are not fellow servants.

2. In an action for the death of plaintiff's husband, it appeared that deceased was a track repairer in the employ of defendant railroad, and was killed by an engine while walking to his work on defendant's track. Held, that though deceased was negligent in walking on the track, and not seeing the engine, the engineer was bound to use due care to see the dangerous position of deceased, and to avoid injuring him, and, in the absence of such care, defendant would be liable.

3. In an action for the death of plaintiff's husband by being run over by an engine of defendant, the admission of evidence as to the number of children left by deceased, though erroneous, is not cause for reversal; Rev. St. 1879, § 2121, providing that, in such case, the railroad shall forfeit and pay for every person so dying the sum of $5,000, which may be sued for and recovered by the wife of deceased.

4. Where evidence is inadmissible as being expert testimony which the witness is not competent to give, an objection to its admission, because it is "incompetent and immaterial," is not sufficiently specific.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

Action by Anna M. Schlereth against the Missouri Pacific Railroad Company to recover damages for the killing of plaintiff's husband. Judgment for plaintiff, and defendant appeals. Affirmed.

H. S. Priest and H. G. Herbel, for appellant. E. P. Johnson, for respondent.

MACFARLANE, J.

This is the second appeal of defendant in this case. The opinion of the court on the first appeal will be found reported in 96 Mo. 514, 515, 10 S. W. Rep. 66. A full statement of the pleadings and evidence accompanied that opinion. The petition upon which the case was tried the second time was unchanged, and the evidence was, in substance, the same as on the first trial. The answer was amended, and a plea of contributory negligence was added, and upon that answer the case was retried. The statement of the petition and evidence, found reported with the opinion on the former appeal, is taken as sufficient to a proper understanding of the questions for decision on this appeal. Any additional facts considered necessary will be stated in connection with the questions discussed. On the second trial a demurrer to the evidence of plaintiff was again overruled; the case was submitted to the jury upon instructions; and a verdict was found for plaintiff for $4,000, and defendant appealed.

1. The evidence shows that deceased, the husband of plaintiff, was a track repairer in the employ of defendant. While walking on or along the track of defendant's road, an engine, driven at a prohibited rate of speed, by an engineer also in the employ of defendant, ran upon or against deceased, inflicting the injuries from which he died. It is insisted, in the first place, that the demurrer to the evidence should have been sustained, for the reason, as is claimed, that deceased and the negligent engineer were fellow servants, within the rule which exempts the master from liability for damages to one servant resulting from the negligence of another. There is no doubt that the weight of judicial authority sustains the position for which defendant contends. Murray v. Railroad Co., 98 Mo. 573, 12 S. W. Rep. 252. The majority of the members of this court are of the opinion, however, that the reasons and policy upon which the rule of exemption has been placed do not extend to those common employes of a railroad corporation occupying the relation to each other sustained by deceased and the engineer. The writer has been of the opinion that the general rule exempting the common master, in all cases where the servants are engaged in a common service, has been recognized and approved by the courts of this state for so long a period of time, without change or serious question, that, while the principle has been questioned, it had become the settled policy of the state, and should only have been changed by legislative action. Rohback v. Railroad Co., 43 Mo. 192, and cases cited in dissenting opinion of GANTT, J., in Parker v. Railway Co., 19 S. W. Rep. 1119, (not yet officially reported.) The importance of having the rules of law firmly established, especially those under which property rights are held, or the business and wages of large classes of citizens are made to depend, is fully recognized, and we therefore hold, in accordance with the late rulings of this court, that the husband of plaintiff was not a fellow servant of the negligent engineer, within the rule of exemption. Sullivan v. Railroad Co., 97 Mo. 113, 10 S. W. Rep. 852; Parker v. Railroad Co., supra, and Dixon v. Railroad Co., 19 S. W. Rep. 412, (the two latter not yet officially reported.)

2. Defendant insists, further, that it is manifest, from all the evidence, that the negligence of deceased directly contributed to his own death, and for that reason the demurrer to the evidence should have been sustained. The evidence shows that deceased had worked, for a number of years, on the track of defendant's road, in the city of St. Louis, and was perfectly familiar with the running of trains thereon. It was shown that, of the two parallel tracks, one was used exclusively for trains running in one direction, and the other for trains running in the opposite direction, and that as many as 50 trains ran over these tracks daily. Deceased started to his work, walking on the track, upon which trains going in the same direction were run. No witness saw the train strike deceased, and it does not appear whether he was struck while on the track or beside it. The rule is that "the presumption of due care always obtains in favor of a plaintiff in an action to recover damages for an injury sustained by him, through the alleged negligence of another." Petty v. Railroad Co., 88 Mo. 320; Parsons v. Railroad, 94 Mo. 286, 6 S. W. Rep. 464. This presumption does not attend one who is a trespasser upon a railroad track, or one who goes thereupon without right or license so to do. Rev. St. 1879, § 809; Barker v. Railroad Co., 98 Mo. 53, 11 S. W. Rep. 254. Nor do we think it attends one who is making use of a railway track for a footway for his own convenience, though he be an employe of the railroad company, or though so using the track by its acquiescence. Loeffler v. Railroad Co., 96 Mo. 269, 9 S. W. Rep. 580. The fact that deceased was near enough the track to come in collision with the engine, defendant having the exclusive right to the use of the track at that point, in the absence of explanation, was sufficient to raise a presumption of contributory negligence on his part, and the demurrer to the evidence should have been sustained, unless the engineer subsequently failed in his duty to deceased. No one saw the accident but the engineer, and he was not a witness on the trial. Deceased...