Stringer v. Missouri Pac. Ry. Co.

• Decision Date: 26 November 1888
• Citation: 9 S.W. 905,96 Mo. 299
• Parties: STRINGER v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

9 S.W. 905

96 Mo. 299

STRINGER v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

November 26, 1888.

MASTER AND SERVANT — TORTIOUS ACT OF SERVANT — LIABILITY OF MASTER.

Plaintiff got on the front of defendant's switch-engine, which was then switching cars, at the invitation of defendant's brakeman. It did not appear that the brakeman was acting within the scope of his employment. The engine was thrown from the track, and plaintiff was injured. Held, that defendant was not liable.

Appeal from St. Louis circuit court; WILLIAM H. HORNER, Judge.

Action by James Stringer against the Missouri Pacific Railway Company for personal injuries. There was a judgment for plaintiff, and defendant appealed.

Bennett Pike and T. J. Portis, for appellant. A. R. Taylor, for respondent.

NORTON, C. J.

This is an action to recover damages for personal injury, in which plaintiff obtained judgment, from which defendant has appealed, and assigns among other grounds of error the action of the court in refusing to sustain defendant's demurrer to the evidence, and in overruling defendant's motion in arrest of judgment. To sustain his case plaintiff offered himself as a witness, and testified that he lives in the city of St. Louis; is a laborer by occupation, and at the time he was injured, in 1883, he was 18 years old, and at time of trial about 21; that at the time of the injury he was working in Garstang's boiler-yard; that on the day he was injured he was going down the levee, and saw engine No. 212, belonging to defendant, standing on the levee, at the curve; that he walked towards the brakeman, who was sitting on the front of the engine on the right-hand side; that the brakeman told him to get on; that he got on the engine, rode up as far as Twelfth street; that when the engine was on the curve he heard one of the brakemen say that "he would give her hell;" that by the time they reached the middle of the curve the rails spread, and the engine jumped the track, and went over his leg; that the engine jumped the track near Twelfth street, on the south side of the track, as it was going west; that the engine, after it jumped the track, went over between the tracks; that the ground at the point of the accident was soft; that the step of the engine got on his right leg, about two inches above the ankle; that he was taken thence to the city dispensary, where his crushed leg was amputated about four inches above the ankle. As to the reason for his getting on the engine he said that he was walking towards the engine, and one of the brakemen said to him, "If you are going to get on, get on;" that the engineer was in the cab of the engine. He further testified that there were two men standing on the front of the engine, on the step, and that he got on and stood between the two men while he was riding; that the step he stood upon in front of the engine was a plank, about eight inches wide and five feet long; that he was...