Stocks v. St. Louis Transit Co.

• Decision Date: 15 March 1904
• Citation: 106 Mo. App. 129,79 S.W. 1176
• Parties: STOCKS v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

79 S.W. 1176

106 Mo. App. 129

STOCKS v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

March 15, 1904.

STREET RAILWAYS—FELLOW SERVANTS—CONDUCTOR AND MOTORMAN.

1. The conductor of one street car and the motorman of another are fellow servants, so that the common employer is not liable for injury to the conductor from a collision of the cars through the negligence of the motorman.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by John Stocks against the St. Louis Transit Company. Judgment for plaintiff, and defendant appeals. Reversed.

Boyle, Priest & Lehman, for appellant. Edw. T. Farish, for respondent.

GOODE, J.

This plaintiff was hurt while he was employed by the defendant as conductor on one of its trolley cars. He alleges in his petition, and his evidence tends to prove, that the injury he received was caused by the negligence of a motoneer operating another trolley car, not by any negligence of the defendant company in the discharge of duties which cannot be delegated to employés. Therefore the decisive question in the case is whether the plaintiff and said motoneer were fellow servants. If they were, the defendant is not liable, for the Supreme Court has decided that the fellow-servant statute (Rev. St. 1899, § 2873), providing that a railway corporation shall be liable for all damages sustained by an agent or servant thereof while engaged in the operation of the railway, by reason of the negligence of any other agent or servant, does not apply to street railway companies; thereby leaving in force, as to said companies, the rule of the common law that a master is not responsible for an injury to a fellow servant due to the negligence of a co-servant. Sams v. R. R., 174 Mo. 53, 73 S. W. 686, 61 L. R. A. 475. This court took a different view of the statute, and on the first hearing affirmed the present case; but pending the motion for a rehearing the Sams Case was decided, and is now the law of the state.

The trolley car on which plaintiff was conductor July 7, 1900, became disabled, and, in accordance with a rule of the company, was started to the sheds on Geyer avenue to be repaired. It had proceeded westwardly on said avenue to a point opposite the company's power house, and just west of the west end of a track connecting the north and south tracks, called a "cross-over," used to switch cars from one track to the other. Plaintiff's car was on the north track, as it was proceeding westward. After it had reached the west end of the cross-over, plaintiff changed his trolley pole from the east to the west end of the car, so as to run over the connecting track into the power house or shed. Having adjusted the trolley pole, he tried to open the gate on the south side of the west vestibule of his car in order to get on the platform, and while doing so the motoneer of the California avenue line carelessly ran a car against him, inflicting the injury complained of.

The decisions in this state relating to when two or more persons employed by a common master are fellow servants, in such sense that a master is not liable for injuries inflicted on one by the negligence of another, are far from harmonious as to the criterion of co-service, and we shall not attempt to formulate a principle of universal application in determining the question. Those cases most favorable to the suits of employés, as mitigating somewhat the rigor of the common law, hold employés to be co-servants only when their duties are so related and associated as to enable them to observe and have an influence over each other's conduct, and report delinquencies to a common correcting power; that employés engaged in different departments are not fellow servants. Relyea v. R. R., 112 Mo. 86, 20 S. W. 480, 18 L. R. A. 817. The principle of the case just cited, and the group of facts on which the decision...