108 Mo. App. 399 | Mo. Ct. App. | 1904
— Plaintiff was badly hurt by being run against by one of the defendant’s trolley cars. The accident occurred the morning of November 28, 1903. Plaintiff was one of the defendant’s motormen and on that morning was ordered by a foreman named Dring to take a car out of the carsheds at Delmár and De-Balaviere avenues. Those sheds are the division headquarters for five or six lines of street cars operated by the Transit Company; among them the Olive street, the Delmar avenue and the Page avenue lines. Several hundred cars go out of the sheds daily on the different lines. . The particular ear which Bien was ordered to take out that morning was new, and much larger than those theretofore used by the defendant company. In obedience to the direction of Dring, Bien started out of the carsheds with the car, but stopped after passing outside, a car’s length or so from a structure called the sand shed, to get some sand for use on the trip, as was his duty. It appears that Dring had ordered him to stop when he did in order to put a signboard on
The main defense in the case is that Dring was a fellow-servant of Bien. This is contested by respondent’s counsel, who insist that he was a foreman or vice-principal. The regular division superintendent about the sheds was one Myers; and it is the contention of the Transit Company that Dring had no authority over the men working about those yards, except to tell the motormen and conductors what cars to take out and when to take them. Another defense is that Bien, in obedience to a rule of the company, should have taken with him, when he went for the sand, his motor handle by which the motion of the car is controlled; that if this had been done the car could not have been started; and, therefore, Bien’s own negligence contributed to the accident. On this point it is proper to state some testimony: The chutes through which' sand was let from the sand sheds into the buckets were opened by the use of the ordinary motor handle with which motormen operate their cars; that is to say, the device for taking out sand was constructed in such a manner that it could be opened by this motor handle. When Bien went
Two principal questions are pressed for solution on the appeal. First,' as stated above, whether Bien and Dring were fellow-servants, or the latter a vice-principal; second, if he was a vice-principal in the' performance of his proper duty, whether he became a fellow-servant of Bien in undertaking to run the latter’s car out of the way of the car in the rear, for the reason that the act of operating the car was not one of the duties entrusted to him by the Transit Company. Dring’s chief, if not his sole, duty was to regulate the trips of the various crews that went out from the Delmar and DeBalaviere sheds. He assigned crews to the different cars and directed them as to the times of their runs. The members of the crews who testified said they received their orders from him, but in most instances limited the statement by saying they meant orders in regard to taking out cars. Dring had control of them to that extent, at least, and laid them off from work occasionally for infractions of the company’s rules or disobedience of orders. What other work besides regulating trips and assigning crews to make them, was performed about that focus of the Transit Company’s business, does not appear in evidence; but it does fairly
Judicial efforts to find a criterion of general application in determining when one employee so far represents the employer that he is a vice-principal and the employer responsible for his negligence resulting in injury to a coemployee, have yielded one of the conspicuous failures of latter-day jurisprudence. The confusion in the cases appears to have arisen from biases in favor of or against the doctrine of respondeat superior. Many judges have inclined to restrict the operation of that doctrine by enlarging the scope of the fellow-servant rule which is an exception to it, and narrowing the scope of the exception to the latter rule based on the status of vice-principalship. Other judges have shown the opposite tendency. Both doctrines, respondeat superior and fellow-servant, are •measures of expediency and can not be reasoned into harmony with each other or perhaps with ideal justice. The law is never free from -rules imposing extraordinary responsibilities on particular classes; as witnesses, common carriers, innkeepers, guardians, trustees and the like., The importance of compelling such parties to do all in their power to prevent mischief or loss leads to holding them responsible often for mischief or loss which it was out of their power to prevent. Itis obvious that rules of this land are assailable as productive of injustice, and to temper their rigor, exceptions and qualifications are introduced, and occasionally these are inconsistent in principle with the main rule. The doctrines of respondeat superior and coservice are examples of this. One may hold the opinion that the rule requiring masters to answer for the default of servants is accorded too -great a sphere at present, constituting, as administered, an unreasonable extension of the principles of the law of agency, without thinking that it can be restricted logically by withholding it as a remedy from fellow-servants or any
To confine our investigation to the facts of this case, we propound these questions as covering the field of inquiry necessary to he gone over to arrive at a correct judgment: Were Bien and Dring so closely associated in their work that they were able to observe and influence each other and- report a delinquency which threatened one of them to a common superior for redress? Did Dring have authority to superintend and control Bien in the work that fell to the latter? Was there evidence for the jury tending to prove the particular negligent act of Dring which injured Bien was performed as a vice-principal and not as a fellow-servant?
Dring was foreman over five hundred men, including Bien, and had authority to order, regulate and control those men in running cars; the only duty that fell to them about that center of the Transit Company’s business and, so far as is shown, the only duty they performed at all. The ease, as to this point, falls within the decision of Miller v. Eailroad, supra, wherein it was declared that if a master gives a person power to superintend and direct men at work, such person is as to those men a vice-principal, whatever his designation or title may be. The same authority and analogous ones answer our second question; for it has never been held, to our knowledge, that a workman under a superintendent or foreman of a great headquarters, and bound to obey the latter’s orders, was so closely associated with the superintendent that the two ought to be classed as fellow-servants. Bien’s work gave him no chance to influence the manner in which Dring superintended, and it would be preposterous to say that a common workman could report the fault of his superintendent, when the latter was in authority over hundreds of men, with such hope of favorable audience as to insure protection against being hurt by the su
“Gibbs was not a fellow-servant with plaintiff. The evidence shows he had control of the plaintiff’s work, to direct how, when and where he should work. The fact that they both had a general superintendent over them in the person of Mr. Rankin did not make them fellow-servants. The foreman in directing plaintiff’s work, what he was to do, where he was to do it and how he was to do it, was performing the master’s duty pro hac vice, and was a vice principal. ”
In that case as in this one, there was a superintendent in authority over the negligent foreman.
We cite other apposite decisions in support of the proposition that Dring was a vice principal. Dayharsh v. Railroad, 103 Mo. 575, 15 S. W. 554; Miller v. Railroad, 109 Mo. 357, 19 S. W. 58; Russ v. Railroad, 112 Mo. 45, 20 g. W. 472; Donakoe v. Kansas City, 136 Mo. 670, 38 S. W. 571.
Our conclusion from the precedents we have cited is that Bien’s injury through Dring’s negligence is one for which the defendant company must answer, as Dring was found to have caused the injury in undertaking to do something which he might have ordered done and which was clearly within the sphere of his duty as superintendent. The court submitted the question of the capacity in which Dring acted to the jury; and this was in accordance with the Fogarty decision. The jury were told that if they believed from the evidence Dring was employed as foreman of the carsheds and by virtue of his employment and position had immediate control and direction of the plaintiff and others engaged in taldng out cars from the sheds, and had authority to direct and control plaintiff’s work, Dring was a vice principal and not a fellow-servant. A
Whether Bien contributed to his injury by a lack of ordinary care was submitted to the jury. The appellant contends the testimony showed beyond doubt that he was guilty of contributory negligence and, therefore, ought to have been nonsuited. The facts insisted on to prove his negligence are that when the car was nearly on him, instead of running to the west out of the way, he rushed toward the east and was caught. To hold that such a mistake was negligence to bar recovery in view of the fact that Dring ran the car on him while he was stooping to get sand and, of course, startled him, would be wrong. It is further said that according to the rule of the company Bien should have taken the controller handle with him when he went after sand, and was guilty of negligence in leaving it on the car so that the car could be moved with it. We have already explained Bien’s reason for doing so. He took it in the first place, could not use it, brought it back and laid it in the front of the car. That negligence, if it was such, was connected with the accident in a very remote way. Dring picked up the controller handle, started the car with it and ran against Bien when the latter was in plain sight. Bien swore that all the rule of the company required of him was that he should take the controller handle off its socket and lay it on the controller or elsewhere, and did not impose on him the duty of carrying it in his hand wherever he went. The evidence of any contributory negligence on Bien’s. part is slender at best and was for the jury’s consideration.
The judgment is affirmed.