Schultz v. Pac. R.R.

• Decision Date: 31 July 1865
• Citation: 36 Mo. 13
• Parties: BARBARA SCHULTZ, Plaintiff in Error, v. THE PACIFIC RAILROAD, Defendant in Error.
• Court: Missouri Supreme Court

36 Mo. 13

BARBARA SCHULTZ, Plaintiff in Error,

v.THE PACIFIC RAILROAD, Defendant in Error.

Supreme Court of Missouri.

July Term, 1865.

Error to Cole Circuit Court.

Plaintiff, as the widow, brought her action under the statute for the better security of life, property and character. The petition alleged that plaintiff's husband received an injury, of which he died, resulting from the negligence, unskillfulness and criminal intent of the officers, agents, servants and employees of defendant, while running, conducting and managing the locomotive and cars on its railroad near the city of Jefferson. The answer alleged that plaintiff's husband was a fellow-servant of the servants and employees of defendant, who were running the cars at the time the collision (causing the death) occurred.

Plaintiff offered evidence sustaining or tending to sustain the allegations of the petition, that the collision of the cars resulted from gross negligence or criminal intent of Harrington, who had charge of the engine and locomotive when this collision happened. It also appeared that Schultz. the husband of plaintiff, was a day laborer, employed and paid by the day; that at the time of the collision he, with other laborers, was on a wood train, which was ascending the road with wood brought from a point some miles below Jefferson City, and when within about half a mile from the latter place the train came in contact with a locomotive descending the track from the depot at Jefferson, in charge of Harrington.

The evidence shows that Harrington had been in the constant employ ment of the company for a year or two; that Schultz was an occasiona. and irregular laborer, employed by the day.

When the evidence was closed, plaintiff asked the following instructions:

1. If the jury believe from the evidence that Benedict Schultz was the husband of this plaintiff, and that the said husband of plaintiff died within six months before the commencement of this suit, from injuries resulting from a collision which took place, in the county of Cole, between a locomotive of defendant descending its railroad from its depot in the city of Jefferson, and a locomotive car and train of said defendant, on which was plaintiff's husband, at the time and by the consent of its conductor, which was ascending said road toward Jefferson City; and that said collision was occasioned by the negligence, unskillfulness or criminal intent of an officer, servant or employee of defendant, whilst running, conducting and managing said locomotive so descending said road, then the jury will find for the plaintiff, and will return a verdict for five thousand dollars.

2. It the jury believe from the evidence that the plaintiff's husband died from injuriesresulting from a collision of the locomotive and cars of defendant, whilst an officer, servant or employee of defendant was running, conducting and managing the locomotive which was descending the said road as stated in first instruction, this is presumptive proof of negligence, and it devolves upon the defendant to show that it was chargeable with no default.

3. The jury will determine from all the evidence whether the servant or employee of defendant, while running, conducting and managing the locomotive which came in collision with the train ascending the said road, exercised the care and foresight of a prudent man; and the absence or want of such care and foresight is what is meant by negligence, as used in the first instruction.

All of which were objected to by defendant, and were refused by the court. To the opinion of the court in sustaining the objection and refusing instructions, the plaintiff excepted.

The court, at the request of the defendant, gave the following instructions: 1. If the jury shall believe from the evidence that Benedict Schultz was the husband of plaintiff, and was, at the time of the collision on the road of defendant, a servant of employee of defendant, and that the death of said Benedict Schultz was caused by the act of Harrington, and that said Harrington was at said time also a servant or employee of defendant, then the jury will find for the defendant, unless the jury shall further believe from the evidence before them that said Harrington was an incompetent servant or employee, and that the defendant failed to exercise ordinary care in his selection.

2. The defendant is not responsible for injuries to its servants or employees resulting from the act of a fellow servant or employee, unless the servant committing such injury be incompetent to fill the position in which he may be employed, and that the railroad company failed to exercise ordinary care in his selection.

3. It devolves upon the plaintiff to show that Harrington was an incompetent servant or employee in the particular department in which he may have been employed, or in which he may have been engaged, and that the railroad company, in the selection and appointment of said Harrington, failed to exercise ordinary care.

4. It is not sufficient to entitle the plaintiff to recover, for her to show that the death of Schultz was caused by any act of Harrington, willful or with a criminal intent or otherwise, if the jury shall believe that both Harrington and Schultz were, at the time of the injury, servants or employees of defendant, unless they shall further find from the evidence that the injury resulted from the act of Harrington, and that said Harrington was an incompetent servant, not qualified to discharge the duties which devolved upon him; and further, that defendant in the selection of said Harrington did not exercise ordinary diligence.

5. That although the jury may believe from the evidence that the fireman Harrington may have run the engine below the wood-yard and watertank of defendant, and that such act was contrary to the rule and custom of defendant, and was improper in itself, and that the death of plaintiff resulted from his carelessness or negligence in so doing, yet such unauthorized act of said fireman Harrington does not render the defendant liable to plaintiff in damages for the loss of her husband, unless the jury shall further find from the evidence that said Harrington was an incompetent servant, and that the company failed to exercise ordinary care in his selection and appointment; provided the jury shall further find that said Schultz was, at the time of his death, a servant of defendant and in its employ.

6. No particular length of service, nor any specified or agreed term of hiring or employment, is necessary to constitute Schultz a servant or employee of defendant; nor is it necessary for defendant to prove that Schultz was in any particular class of employees or servants to exonerate defendant from liability for injuries received by him from a fellow servant, whilst both such servants were in the actual employment of defendant.

To the opinion of the court in overruling the objection of plaintiff and giving said instructions, plaintiff excepted. The plaintiff thereupon took a non-suit and filed a motion to set aside the judgment and for a new trial.

Ewing & Muir, for plaintiff in error.

I. The case of McDermott v. The Pacific Railroad is unlike the case at bar. The defendant is liable at common law according to the following authorities: Gillenwater v. Madison & Ind. R. R. 5 Porter, Ind., 340 Fitzpatrick v. New Albany & Salem R. R., 7 Ind. 436; Chamberlain v. Mil. & Miss. R. R., 11 Wis. 250: Ohio St. R. 210; 20 Ohio, 415.

II. This action is clearly maintainable under the statute if not at common law, and the authorities cited by counsel for defendant do not apply. (1 R. C. 1855, p. 647.) This is evident from the terms of the second section, as well as from the scope and meaning of the whole act. The words are, “Whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive car or train of cars,” &c. Another clause of same section says: “When any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad or any part thereof, or in any locomotive or car, &c., the corporation or individual in whose employ such officer, agent, &c., shall be, or who owns such railroad, locomotive, car,” &c., “shall forfeit and pay for every person or passenger so dying,” &c.

The restrictive terms of the last clause limiting the liability of company to injury received by passengers, show what is meant by the phrase “every person,” in the first clause; and that the intent of the Legislature in enacting this law, was to embrace employees as well as passengers. The use of general and comprehensive terms in one clause, and of the restricted terms in another part of the same section, clearly shows that the mind of the law-maker discriminated between classes of persons, and that the words of the act were used in the distinctive sense of their ordinary and obvious import would imply. If passengers, only, were intended in the first part of the section, why were the terms “any person” used to express that intent, when, as in another part of the same section, in creating a liability for injuries to passengers caused by other agencies, it was necessary to express the intent by using the term “““passengers?”

There are but two classes who are comprehended by the act, and who travel on railroads--passengers and employees; and as employees are excluded from the benefit of the second clause referred to, because the law expressly limits the liability as to passengers only, so the employees must be held to be comprehended in the first clause, because its terms clearly include them under the designation of “any person.” The third sustains the interpretation we have given of the second section. In the third, a right of action is given for injuries caused by other agencies than railroad employees, &c., provided an action could have been...