103 Mo. 570 | Mo. | 1890
Plaintiff was in defendant’s service as a laborer under Mr. Stephens, who as “hostler” had charge and care of defendant ’ s engines in the roundhouse. As such, he also had control and direction of the men necessary to assist him in that work. It is conceded that he had superintending oversight of plaintiff, but the claim is made that he was, nevertheless, a fellow servant of the latter in respect of the movement of the engine which did the damage, and that, consequently, his negligence could not properly furnish a basis for a recovery herein. This is the main question in the case.
A person employed to perform any of the master’s duties toward his servant is, while that relation continues and in respect to such duties, no fellow-servant of the latter. The duties which the master owes the servant may, in many particulars, be delegated to subordinates, and the wide extent of modern business enterprises often necessitates so doing ; but that delegation of authority does not relieve the master from a proper discharge of those duties.
In this case, Mr. Stephens, when the accident happened, was in entire charge of the place where the defendant’s engines were kept and cared for, when not in use, and of the men needed for the work upon and about them. It is not decisive of this case by what name his position, in that regard, was designated, nor whether he had authority to hire and discharge the men under him.
It was also a part of his duty (in exercising such authority over and direction of the railroad business at the roundhouse as had been committed to him by the master) to use ordinary care not to expose any man under his orders to risks, unknown to the latter, not-ordinarily incident to his employment.
Starting from these premises, which, we imagine,, cannot at this day be fairly disputed, we go forward in the argument to other positions which are involved in some uncertainty, owing to the conflict of judicial decisions regarding them. We shall not attempt to-review the precedents, but will merely state the principles, deducible from them, which meet our approval.
It was undoubtedly within the scope of Mr. Stephens’ authority, as “night hostler” or “boss,” to direct where the engine and tender, that struck plaintiff, should be placed, and how and when they should be-moved over the tracks. In giving directions to that end and seeing to their execution, we think he was performing the master’s part, and as such was the representative of the latter and not a mere fellow servant of the plaintiff.
If he had expressly directed the engine to be moved down by another upon the plaintiff, in the manner described in the evidence for the latter, the defendant would have been responsible for the act, and we are unable to perceive any logical or reasonable distinction between so directing it and his performing such negligent act himself, in the circumstances here shown. It
In view of the result reached on another branch of the case, we do not deem it necessary to enlarge upon the reasons for the foregoing rulings at this time, but refer, instead, to some decisions in which they may be found: Chicago & M. Ry. Co. v. Ross, 112 U. S. 377 Berea Stone Co. v. Kraft (1877), 31 Ohio St. 287; Flike v. Railroad (1873), 53 N. Y. 549; Grizzle v. Frost (1863), 3 Foster & F. 622; Reddon v. Railroad (1887), 5 Utah, 344; Rima v. Iron Works (1890), 120 N. Y. 433 ; Anderson v. Bennett (1888), 16 Oregon, 515 ; H. & St. Jo. Ry. Co. v. Fox (1884), 31 Kan. 586.
That there was evidence on plaintiff ’ s part sufficient to justify the submission of the issue of defendant’s negligence, in the backing of the engine upon him while at work, without warning, is not now seriously disputed. We also regard the question of the contributory negligence of plaintiff as one for the jury on the facts disclosed.
II. But it bec'omes necessary to reverse the judgment, because of the admission of evidence of the number of plaintiff’s children and their ages, against the objection and exception of defendant. The admission of such testimony has been positively disapproved by this court (Stephens v. Railroad (1888), 96 Mo. 207), and by other courts. Penn. Co. v. Roy (1880), 102 U. S. 451; 1 Am. & Eng. R. R. Cases, 225; Kreuziger v. Railroad (1888), 73 Wis. 158, and 40 N. W. Rep. 657;
Whatever remarks are found in other cases to the contrary (for example, in Winters v. Railroad (1867), 39 Mo. 468, and Conroy v. Iron Works (1882), 75 Mo. 652 ), cannot longer be regarded as authoritative.
Nothing that took place at the trial can be considered as curing the error referred to. On the contrary, the only instruction given by the court on the measure of damages rather gave prominence to that piece of irrelevant testimony, by alluding to plaintiff’s “situation in life” and to “the extent to which he is disabled from making a support for himself and familyP In this condition of the record we certainly cannot fairly pronounce the error harmless.
The rule on this subject is, that error is presumptively prejudicial. It devolves on a party claiming it to be otherwise, to show its innocuous character. Here, we think, such showing has not been successfully made, and a reversal must follow.
III. It is not necessary to discuss the other assignments of error.
The judgment is reversed and the cause remanded,
