Sherrin v. St. Joseph & St. L. R. Co.

• Citation: 15 S.W. 442,103 Mo. 378
• Court: United States State Supreme Court of Missouri
• Decision Date: 24 February 1891
• Parties: SHERRIN et al. v. ST. JOSEPH & ST. L. R. CO.

15 S.W. 442

103 Mo. 378

SHERRIN et al. v. ST. JOSEPH & ST. L. R. CO.

Supreme Court of Missouri, Division No. 2.

February 24, 1891.

INJURIES TO EMPLOYES — NEGLIGENCE OF FELLOW-SERVANTS.

Two foremen of gangs of sectionmen working independently of each other, but under the same road-master, are fellow-servants, and where a collision between their hand-cars is caused by the negligence of one, and results in an injury to the other, the railroad company is not liable, though as to the men under him the negligent foreman is a vice-principal, and is engaged at the time of the accident in keeping the track in repair.

Appeal from circuit court, Clinton county; J. M. SANDUSKY, Judge.

Sherry & Hughes, for appellants. Gardiner Lathrop, James Limbird, and John A. Cross, for respondent.

GANTT, P. J.

"Plaintiffs, for their second amended petition, state that the said Maggie Sherrin and Grace Sherrin are minor children, and sole heirs at law of John Sherrin, deceased, aged, respectively, six and three years; that the said John Sherrin died, leaving no wife; that the said William Honn is the duly-appointed and qualified next friend; that the defendant is a corporation duly organized under and by virtue of the laws of the state of Missouri, and as such, at and before the time hereinafter mentioned, owned and operated a railroad from the city of St. Joseph, in Buchanan county, to Richmond and Lexington Junction, in Ray county, Mo., and in and through Clinton county, Mo.; that John Sherrin, the father of plaintiffs, was, at the time hereinafter mentioned, employed by defendant in the capacity of foreman of what is called an `extra gang' of men, by virtue of which employment he had in his charge and under his control a force of ten men, who were subject to his orders; that as such foreman he was subject only to the orders of defendant's road-master, and was subject to be sent to any part of defendant's road by such road-master to do extra work thereon, that is, such work as did not properly fall within the duty of any local men, or was not assigned to other employes of defendant, and in the discharge of said duties the said Sherrin was furnished by defendant with a hand-car for his use in and about his duties aforesaid, and for the purpose of transporting the men in his charge from place to place, and to and from their labor, along the line of defendant's railroad; that on the ______ day of ______, 1887, the said John Sherrin, in the discharge of his duty, was passing along the line of defendant's railroad, in charge of his force of men, on said hand-car, and when at a point about one mile east of Plattsburg on said road the local section boss of defendant, in charge of and operating another hand-car, negligently ran the said hand-car against the car upon which said Sherrin and his men were riding as aforesaid, thereby throwing said Sherrin from and in front of his said car so as to cause both of said cars to run over him, causing injuries from which he died on the ___ day of ____, 1887. Plaintiffs state that said hand-car so negligently managed and operated was at the time in charge of and being operated by one Ben Fort, a local section boss of defendant, and the employes of defendant in his charge and under his direction, and the same was furnished by defendant to said Ben Fort, to be used by him in and about his duties as said section boss, and in transporting the men in his control, while laboring for defendant, from place to place, along defendant's railroad, and to and from their labor in keeping the track and road-bed of defendant in repair in his section; that said Ben Fort was the local section boss of defendant, stationed by defendant at Plattsburg aforesaid, and was as such section boss subject only to the orders of defendant's roadmaster aforesaid, and defendant had placed him in charge of said section of defendant's track in which the injury occurred, and given said Fort charge and control of a force of ten men; that it was the duty of said Fort to employ and discharge his men, superintend and direct their work, keep their time, direct their movements, transport them to and from their work and along defendant's line of road, whenever their work required, and was furnished by defendant with a hand-car for that purpose; that said car upon which said Sherrin was riding at the time of the injury was run into by reason of the negligence and carelessness of the said Ben Fort, and the men in his charge, operating their said car, in the performance of his duties as boss of said local gang of men, and by his carelessness in running, operating, and controlling said hand-car. Plaintiffs state that the said Sherrin was injured and killed as aforesaid by reason of the negligence of said Fort and the employes of defendant under his direction in the charge of the same in...