State ex rel. Wabash Ry. Co. v. Ellison

• Citation: 204 S.W. 396
• Decision Date: 13 June 1918
• Docket Number: No. 20714.,20714.
• Parties: STATE ex rel. WABASH RY. CO. v. ELLISON et al., Judges.
• Court: Missouri Supreme Court

204 S.W. 396

STATE ex rel. WABASH RY. CO. v. ELLISON et al., Judges.

No. 20714.

Supreme Court of Missouri. In Banc.

June 13, 1918.

Action by Amanda McGolderick against the Wabash Railway Company. Plaintiff recovered judgment, and defendant appealed to the Court of Appeals. To review the judgment (200 S. W. 74) of James Ellison and others, constituting the Court of Appeals, the defendant brings certiorari. Writ quashed.

J. L. Minnis and N. S. Brown, both of St. Louis, and Higbee & of Lancaster, for petitioner. A. D. Morris and Fogle & Fogle, all of Lancaster, for Amanda McGolderick.

GRAVES, J.

Certiorari to the Kansas City Court of Appeals. The facts of the case and the alleged conflict of opinion will appear from the following excerpt of the opinion of that court (200 S. W. 75):

"This is a suit for personal injuries. Plaintiff recovered a judgment for $3,000, and defendant has appealed.

"Defendant urges that a demurrer to the evidence should have been sustained. A disposition of this point necessitates a detailed statement of the evidence taken in its nest favorable light to plaintiff. This evidence shows that on the 11th day of August, 1916, plaintiff and her little daughter went from their home to Glenwood, Mo., and later in the day they returned. About the time she reached defendant's track on the return trip her horse became frightened at a grindstone situated about 35 feet west, or on the opposite side, of the railroad track and about 6 feet south of the traveled portion of the road. The evidence showed that one Martin had a contract with the defendant for cutting vegetable growth from its right of way for a distance of about 6 miles along the railroad in the vicinity of where the grindstone stood, that the stone that morning had been at another place, and that Martin had requested defendant's section men to move it on their hand car, which was accordingly done, to the place where it frightened plaintiff's horse. Martin testified that he had the grindstone placed there for the purpose of grinding his sickle, which was being used in cutting off the right of way. The grindstone was placed there about 10 o'clock that morning. The accident happened about 4 o'clock of the same day.

"The evidence shows that there was a wagon placed in the road between the grindstone and the railroad tracks. The grindstone was about 8 feet west of the wagon. The stone was about 16 or 18 inches in diameter, and stood on an iron frame about 4 feet high. There was a water funnel suspended above the stone, a treadle attached to the frame with which to turn the stone, and a seat on the frame. It was an old grindstone, and such a one as is commonly used by farmers. It belonged to Martin.

"Plaintiff went to Glenwood about 2 o'clock in the afternoon in question, and when the horse passed the grindstone on the way to town it shied at it, and Martin, who was then grinding his sickle, started toward plaintiff, when she hit the horse a lick and drove him by the grindstone and on to town. The grindstone was on the west, or opposite side, of the railroad from the town of Glenwood, and the railroad at the crossing was located on ground about 10 or 11 feet higher than the ground to the east. Plaintiff testified that when they arrived at a point on the opposite side of the railroad crossing from the grindstone, where the horse could see over the apex of the embankment, he shied and whirled around and ran back for 100 feet, where he stopped and began to eat weeds. When the horse became frightened and whirled around it threw plaintiff out of the buggy, causing the same to run over her, to her severe injury. A mail carrier came along after the accident and got into plaintiff's buggy and drove the horse by the grindstone. The horse again became frightened at it, and the mail carrier hit the horse and made him go by. The horse was described as a very gentle horse, would stand without hitching, and could be driven safely by a child. On the day following the grindstone had been moved to Glenwood Junction, and here two horses, being driven by a lady, shied at it.

"It is urged by the defendant that Martin was an independent contractor, and that its section men in placing the grindstone at the point in question were acting without the scope of their employment, and were voluntarily doing a work of convenience for Martin. However, even if these things were true (matters we do not pass upon), we do not believe that defendant can escape liability in this case. It was the duty of the defendant to keep down the undergrowth along its right of way. This duty was imposed upon it by statute (section 3150, R. S. 1909). Under these circumstances it could not escape liability for injuries to persons caused by the negligence of an independent contractor in doing the work, and therefore it was liable for the acts of Martin in placing the grindstone at the place in question. Peters v. Railroad, 150 Mo. App. loc. cit. 735, 736, 131 S. W. 917; Jackson v. Butler, 249 Mo. loc. cit. 365, 155 S. W. 1071; 26 Cyc. 1562; Elliott on Railroads, vol. 2, p. 866 (2d Ed.); Chicago Economic Fuel Gas Co. v. Myers, 168 Ill. 139, 48 N. E. loc. cit. 69. In the latter case it is held that, even though a person who causes the injury is an independent contractor, he will be regarded as the servant or agent of the corporation for whom he is doing the work where it is shown that the independent contractor in doing the work was exercising some charter privilege or power of the corporation. And in the case at bar we believe that Martin was the servant of defendant in the cutting of the undergrowth on its right of way."

We hardly think further matters in the opinion are seriously questioned, but, if involved in the points made by relator, they can be noted in our opinion in connection with the point urged. The main contention of relator is directed against the ruling made in the excerpt supra. This outlines the case, and points made as to alleged conflict will be stated in course of the opinion.

I. It is clear that the ruling of the Court of Appeals in this case was upon the theory that Martin was an independent contractor if there could ba such under the facts; in other words, that, if the imposed duty created by the statutes did not make Martin the agent of defendant, he was an independent contractor. The opinion of our learned brother cannot be read in any other light. They pass upon it on the theory that this proposition can be granted. The opinion of the Court of Appeals proceeds upon the theory that you may grant all that relator here contends as to the fact of Martin being (in a sense) an independent contractor; yet the finding must be against relator. This upon the theory that the statute of the state has imposed upon relator (the railroad company) the duty of clearing its right of way of weeds, and by reason of this statutory imposition the railroad company cannot have an independent contractor as to such work. In other words, the opinion of the Court of Appeals is on the theory that the evidence shows that Martin was an independent contractor, if there could be an independent contractor under the facts, and the statute. Such court in effect holds that, because the statute of the state imposes upon the railroad company the duty of removing weeds from its right of way, it cannot have an independent contractor as to such work; that, whomsoever the railroad company employs to do this work (required by the statute), such person is an agent of the company, and cannot be an independent contractor, in the sense of relieving the company of damages arising from negligence of any kind in the performance of the work. This is the fair construction of the opinion of our learned brothers of the Court of Appeals. If this ruling conflicts with our rulings, their opinion and judgment should be quashed; otherwise it should be sustained. Nor in this regard is it material what we may think of the question as an original proposition, but the real question is whether or not we have (in principle) ruled adversely to the ruling of the Court of Appeals. We have often said that we do not look for "gray mule" cases upon facts, but that we must seek contrary rulings upon questions of law or equity. If upon any principle of either law or equity the Court of Appeals has thwarted our rule, then this court should quash its record. On the other hand, if the Court of Appeals has a new question...