Smith v. St. Louis & S. F. Ry. Co.

• Decision Date: 12 July 1899
• Citation: 151 Mo. 391,52 S.W. 378
• Court: Missouri Supreme Court
• Parties: SMITH v. ST. LOUIS & S. F. RY. CO. et al.

52 S.W. 378

151 Mo. 391

SMITH v. ST. LOUIS & S. F. RY. CO. et al.

Supreme Court of Missouri, Division No. 1.

July 12, 1899.

RAILROADS — RECEIVERS — MASTER AND SERVANT — INSTRUCTIONS — FELLOW SERVANTS.

1. An action against a railroad company, accruing before the appointment of receivers, cannot be maintained against the receivers without first obtaining consent of the court appointing such receivers.

2. Where the evidence did not show that a railroad company, sued for injuries caused to an employé working about an engine by its premature starting by one not employed as a hostler, but as a wiper, ever permitted him to run an engine, or heard of his doing so, before the accident, and the rules of the company prohibited engine wipers moving engines, and there was no pretense that he was incompetent to do the work of the wiper, for which he was employed, an instruction which authorized a recovery if defendant employed such person, without a finding of the capacity in which he was employed, and permitted him to move engines around the roundhouse or yards, was not responsive to the issues, and was without evidence to support it.

3. An instruction authorizing a finding that one directing the work of employés, but without authority to employ and discharge men, was a vice principal, and not requiring a finding that such foreman had any knowledge that an employé had violated the rules of the company by running engines, or was incompetent, and declaring that knowledge of said vice principal was knowledge of the company employing him, is erroneous.

4. A master is required to exercise ordinary care in retaining servants in his employ, and is liable only where he retains a servant who has proved himself incompetent, his fellow servant assuming other risks.

5. A railroad company is not required to exercise the same degree of care in the employment of an engine wiper as in the case of one employed in a higher capacity, and is not liable for injuries caused by the premature starting of an engine by an engine wiper in violation of rules, and without permission, where no negligence as

wiper is shown, and there is no complaint as to his competency in that capacity.

6. The head hostler employed at a roundhouse with no power to employ or discharge servants, the roundhouse being in charge of a foreman having such power, is a fellow servant of an engine wiper, and not a vice principal.

Appeal from circuit court, Newton county; J. C. Lawson, Judge.

Action by William H. Smith against the St. Louis & San Francisco Railway Company, J. W. Reinhart, John J. McCook, and Joseph C. Wilson, as receivers of said company. Judgment for plaintiff, and defendants appeal. Reversed.

Damages for personal injuries. The petition alleges that the defendant company is, and at the times therein stated was, a railroad company; that on the 23d of December, 1893, the defendants Reinhart, McCook, and Wilson were appointed receivers of said railroad company by the United States circuit court for the district of Kansas; that at the city of Monett "the company had a roundhouse, turntable, switch yards, and coal chutes, where engines are cleaned, repaired, watered, coaled, and made ready to be used by defendant's agents, servants, and employés; that plaintiff was, on the 20th day of October, 1893, and prior thereto, an employé and in the service of the defendant railway company as locomotive fireman on a passenger engine numbered 56, on said railroad, running between Monett, Mo., and Neodesha, Kan.; that on the said 20th day of October, 1893, said engine No. 56 was taken out of defendant's roundhouse by its employés at the usual time preparatory to going out on its run, and placed on the coalchute track in the switch yard at the usual and customary place for putting an engine that is shortly to go out on its run, and that shortly thereafter plaintiff took charge of said engine, as it was his duty to do, while it was standing on said track as aforesaid, and immediately began performing the duties required of him as such fireman in and about getting said engine to take out passenger train numbered 1, going west, and that while plaintiff, in the discharge of his said duties, was examining the ash pan on said engine, to see if it had been properly cleaned, and was stooping over in front of the main drive wheel of said engine in the usual and customary and most convenient position for making such examinations, one Grant Sheldon, who was in the employ and service of said defendant railway company as an engine hostler, and who was an ignorant, incompetent, reckless, and unskillful servant, all of which the said defendant railway company well knew, or by the exercise of ordinary care and diligence might have known, got upon said engine, with the knowledge and permission of defendant, and, in the discharge of the usual and customary work and duty of an engine hostler, recklessly, carelessly, and negligently, and without ringing the bell, sounding the whistle, or giving any other warning, quickly and suddenly started said engine forward, and ran the same against the plaintiff, thereby throwing him down with his left hand upon the track rail in front of one of the drive wheels of said engine, the said wheel passing over said hand, mashing and mangling his hand, causing plaintiff great pain and suffering, and causing him to lose a great deal of time, and rendering it necessary to have his hand amputated above the wrist joint, to his damage in the sum of $25,000; that the defendant railway company negligently and carelessly employed and retained in their employ, and required and permitted to work about and handle the engine aforesaid as hostler, the said Grant Sheldon, well knowing, or by the exercise of reasonable care might have known, that he was ignorant, reckless, unskillful, and incompetent to perform the duties of such hostler, and to handle said engine, and that by reason of the carelessness and negligence of the said defendant railway company in employing and retaining in their employ and permitting to handle said engine the said Grant Sheldon, and by reason of the ignorance, recklessness, unskillfulness, and incompetency of the said Grant Sheldon, the plaintiff was recklessly run upon by said engine, and thrown down and injured and damaged as aforesaid." The second count of the petition is the same as the first, except that, after alleging the character of the company, and that it had the roundhouse, turntable, etc., at Monett, it is further averred, "And that defendants J. W. Reinhart, John J. McCook, and Joseph C. Wilson are the duly appointed and qualified receivers of said railroad as aforesaid, in possession thereof, and operating same as aforesaid," and except, further, that it is charged that the engine was in a defective and dangerous condition. The answer of the company admitted the appointment of the receivers, denied the allegations of the petition, and pleaded contributory negligence on the part of the plaintiff. The receivers adopted the answer of the company, and then pleaded that no permission to sue them had been applied for or granted by the United States circuit court for the Eastern district of Missouri, or any court having jurisdiction of their receivership.

The facts developed on the trial were, substantially, that about 6:40 p. m. on the 20th of October, 1893, the plaintiff, while in the employ of the company as a locomotive fireman, went to his engine, which was standing on what is called the "coal-chute track," at Monett, Mo., to prepare to go out on his run. He lit the lamps on the engine, and, finding that the engine did not have enough coal, he left the engine, and went to the roundhouse, which was 40 or 50 feet distant, and asked for more coal. Then he returned to the engine, opened the valve that lets oil into the lubricator, opened the cylinder cocks, and then stooped down, within four or five feet of the cylinder cocks, with his hands on his knees, and with his head and shoulders under the main rod, which connects the drive wheels of the engine, and which communicates the power to the wheels, to examine the ash pan under the engine. While he was in the position described, the engine started forward. No bell was rung or whistle sounded. The main rod struck him on the head, and he lost his balance, and, to save himself from falling, he threw out his left hand upon the track rail, and one of the drive wheels ran over it, injuring it so that amputation became necessary. After his hand was run over, he raised up, and, as the gangway of the engine passed him, he saw a man getting off of the engine on the opposite side, and called to him for assistance, but the man paid no attention to him. He says that he knew the man's face, having seen him around the roundhouse, but did not then know his name; that the man was Grant Sheldon. The track on which the engine was standing had a slight grade towards the west, and the engine was a medium quick starter; that is, if "everything was tight" with the lubricator turned, and the cylinder cocks open, the engine would start, without any steam being turned on, when on a grade of this character. The plaintiff testified that, if the steam is turned on, it would necessarily escape from the cylinder cocks, and that no steam escaped from this engine. Grant Sheldon was employed as a wiper or fire puller in the roundhouse, and prior to the accident had never been employed as a hostler. The employés at the roundhouse rank — First, foreman, who in this case was J. R. Randall; second, head hostler, who was Peter Stringer; third, second hostler; fourth, third hostler; and, fifth, wipers or fire pullers, whose duties are to perform manual labor cleaning engines, and who are expressly prohibited by the rules of the company from moving an engine, either in or outside of the roundhouse, except in the immediate presence of a hostler. Sheldon, although not a hostler, had, before the accident, moved an...