71 Mo. App. 597 | Mo. Ct. App. | 1896
Lead Opinion
In our view the case was correctly tried on all the points presented and hence we affirm the judgment.
ON MOTION TO TRANSFER CAUSE TO THE SUPREME COURT.
I deem the decision of the majority in the above entitled cause contrary to the following decisions of the supreme court and the St. Louis court of appeals, to wit:
I. Sherman v. R’y, 72 Mo. 63; Cousins v. R’y, 66 Mo. 572; Snyder v. R’y, 60 Mo. 419; Stringer v. R’y, 96 Mo. 299; Garretzen v. Duenckel, 50 Mo. 104.
II. Clark v. Hamerle, 27 Mo. 70; DeWitt v. R’y, 50 Mo. 304; Bank v. Murdock, 62 Mo. 70; Stocker v. Green, 94 Mo. 280; Crews v. Lackland, 67 Mo. 619; Maack v. Schneider, 57 Mo. App. 434; Carroll v. R’y, 60 Mo. 468.
III. Shirts v. Overjohn, 60 Mo. 308; State v. Brooks, 99 Mo. 137; Bogie v. Nolan, 96 Mo. 91; Payne v. R’y, 30 S. W. Rep. 148.
And I therefore order the cause certified to the supreme court in conformity to the requirements of section 6, article 6, of the state constitution.
Rehearing
ON MOTION FOR REHEARING.
The defendant’s motion for rehearing, in connection with the reasons and suggestions in support thereof, has been fully considered, and we have arrived at the conclusion that the motion ought not to be sustained. In the view we take of the case, we find nothing, in it to justify the extended discussion
“3. While the plaintiff had the right to be in defendant’s caboose for the purpose of smoking, yet the jury are further instructed that in remaining in said caboose for said purpose, he assumed all the risks therein incident to the ordinary manner in which the business of the company was transacted in said car.
“4. If the jury believe from the evidence that Lamb did not exclaim in the caboose, ‘jump off,’ or ‘jump for your lives,’ or use words o£ similar import, then your verdict must be for defendant.
“7. The court instructs the jury that under the evidence in this case the defendant was guilty of no • negligence in the running or management of the train preceding or of the train following the one on which the plaintiff was a passenger.”
Those refused were as follows:
“1. Under the evidence and pleadings in this case, it is the duty of the jury to return a verdict for defendant.
“2. While the plaintiff is a competent witness to testify in his own behalf, yet the jury in determining what weight, if any, they will give his testimony, have the right to consider his interest in the result of this litigation; and what plaintiff has testified to against
“5. If the jury believe from the evidence that William Lamb was not in the west cupola, nor at the brake from the time the train left Butler until after the accident complained of, then your verdict must be for defendant.
“6. Even if the jury believe from the evidence that Lamb exclaimed, ‘jump off,’ ‘for Glod’s sake, jump,’ or ‘jump for your lives,’ or used words of similar import, and that plaintiff, in consequence thereof, jumped from the train and sustained the injuries complained of, yet if such exclamations of said Lamb were made wantonly, maliciously, and without any reasonable ground therefor, then your verdict must be for defendant.”
The question, and the only question, which was presented for our consideration was whether it was reversible error to refuse instruction 5. We have held, and still hold, that it was not. We have never stated, as a reason for its having been properly refused, that it failed to include a question whether Lamb was acting in the line of his duty, or whether he was a “swing” or “hind” brakeman.
By reading the instruction anyone will see that it was intended by it to tell the jury, and that it did in effect tell the jury, that if Lamb was not in the west cupola- and was not at the brake until after the accident, then he could not have set the brake before the accident, and in view of the evidence for plaintiff locating him there, did not make the exclamations, and therefore the jury should find for defendant. Now, we do not believe the refusal of the instruction deprived defendant of any defense based on Lamb not
So we adhere to the original opinion wherein we stated that it was not reversible error to refuse instruction number 5. If we concede that the jury had the most ordinary intelligence, we must know that they fully understood from plaintiff’s instruction number 1 that they could not find for plaintiff, unless they believed that Lamb not only made the exclamation attributed to him, but that he also set the brake. The instruction authorized the jury to find for plaintiff,- if they believed those things. But this was not all. Not only was the instruction conditioned upon the jury’s belief of those things, but it continued: “provided, however, you further find as follows;” that these words and acts of the brakeman Lamb induced plaintiff to jump off and that plaintiff believed himself to be in imminent danger, and that he acted as a man of ordinary prudence would have acted under similar circumstances, etc. To allow that the jury possessed any intelligence at all, they must have known, from the wording of this instruction, that they could only find for plaintiff upon the belief of the matters set out therein. Haniford v. City of Kansas, 103 Mo. 182.
But there is another reason which justified the court in refusing the instruction, and that is, that for all practical purposes, as applied to the evidence in the cause, it was covered by instruction number 4, given for defendant, wherein it was declared that if the jury believed that Lamb did not make the exclamations “jump,” or “jump for your lives,” they must find for defendant. The jury, in passing on the question whether the exclamations were made, and whether made by Lamb, as they were required to do by instruction number 4, necessarily had to locate him, for all the evidence showing that the exclamations were made
The result demonstrates that no possible harm was done defendant by refusing instruction 5. For, in view of instruction number 4 for defendant (to say nothing of plaintiffs instruction number 1) the jury found that the exclamations were made and that they were made by Lamb; and the conclusion is irresistible, from the evidence, that the man who made the exclamation referred to in the instructions, was in the west side of the cupola, at the brake.
Motion overruled.
This is the second time this case has been brought here on appeal. (57 Mo. App. 147). On the former appeal, the judgment was reversed and the cause remanded, since which there has been another trial, again resulting in a judgment for the plaintiff and from which defendant has appealed.
The defendant, to support its theory, adduced evidence tending to establish about the following facts, viz., that the train on which plaintiff was riding at the time of the happening of the injury of which he complains .was a mixed one — made up of three of four freight cars, a construction car, in one section of which the mail and baggage were earned and in the other passengers, and a caboose which was used as a smoking car, and in which the employees in charge of the the train rode. In the forward part of the said caboose there was constructed a “cupola,” extending above the top of the car, on the inside of which were three seats. On the west side . of the aisle was the brake, behind which was an elevated seat occupied by the brakeman while engaged in the discharge of his duties, and from which he could, through the lookout in front of him, observe the movements of the train. On the east side were two elevated seats, one of which was for the use of the conductor, who, while occupying the same, could observe through the lookout the forward movements of the train, and the other faced to the rear of the car. .At the time of the accident the “hind” brakeman, Little, was occupying the seat on the west side of the cupola and attending to the brake there — the only one in the caboose. It was his duty to attend to this brake. On the other side of the cupola sat the conductor, Abell, in his seat, observing the forward movements of the train through the lookout. On the front seat sat Lamb, the swing brakeman, with his face to the rear of the train and his back to the front of it. He
In giving the judgment of the exchequer chamber in Berwick v. Bank, L. R. 2 Ex. 259, it was said by Willis, J., that the general rule is that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master’s benefit, though no express command or privity of the master be proved. In Story v. Ashton, L. R. 4 Q. B. 476, Chief Justice Cockbubn said: “The true rule is that the master is duly responsible so long as the servant can be said to be doing the act in the doing of which he is guilty of negligence, in the course of his employment as servantIn Wood on Master and Servant, section 307, it is stated that: “By putting the servant in his place he becomes responsible for all his acts, within the line of his employment, even though they are willful and directly antagonistical to his orders. The simplest test is whether they were acts within the scope of his employment, not whether they were done while prosecuting the master’s lousiness; but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By authorized is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express or positive orders.
And the last named author in his work on Railway Law, section 316, states that the doctrine of respondeat superior does not apply simply from the circumstances that at the time ' when an injury is inflicted the person inflicting it was in the employment of another, but that in order to make the master liable, the act inflicting the injury must have been done in
As illustrative of the principles upon which the foregoing rules are founded, we might, if space permitted, cite numerous cases from both the English and American reports. We shall, however, only briefly refer to a few of the cases mainly in this state, which we think are in point.
Snyder v. R’y, 60 Mo. 419, was where the defendant’s servants were not engaged in carrying passengers, nor had they authority to permit persons to ride on the cars (freight cars), with or without compensation, nor that the invitation or permission alleged was in furtherance of the master’s interests, or indirectly connected with the service they had engaged to render it. The mere fact that a tortious act is committed by a servant, luhile he is actually employed in the performance of the service he has been employed to render, can not make the master liable. Something more is required. It must not only be done while so employed, but it must pertain to the particular duties of that employment. And to the same effect is Stringer v. R’y, 96 Mo. 299; Garritzen v. Duenckel, 50 Mo. 104; Douglass v. Stephens, 18 Mo. 362.
In Cousins v. R’y, 66 Mo. 572, it is said that where the servant was at the time the injury was in
Farber v. R’y, 116 Mo. 81, quotes approvingly from section 316 of Woods’ Railway Law, which is to the
Haehl v. R’y, 119 Mo. 325, was where a servant of the defendant was employed to keep trespassers away from one of its bridges and while in the course of his employment wrongfully shot and killed a trespasser. The principle of liability of the defendant was thus stated by the court: “The principal is responsible, not because the servant has acted in his name, or under color of his employment, but because the servant was actually engaged in and about his business and carrying out his purposes. He is then responsible, because the thing complained of, although done through the agency of another, was done by himself, and it matters not in such cases, whether the injury with which it is sought to charge him is the result of negligence, unskillful or wrongful conduct, for he must choose his agents for the transaction of his business. But if the lousiness is done, or it is taking care of itself and his servant not being engaged in it, not concerned about it, but impelled by motives that are wholly personal to himself, and simply to gratify his own feeling of resentment, whether provoked or unprovoked, commits an assault upon another, when that has, and can have, no tendency to promote any purpose in which the principal is interested, and to promote which the servant was employed, then the wrong is purely the personal wrong of the servant, for which he and he alone is responsible.”
The defendant, as supporting its contention, has cited Golden v. Newbrand, 52 Iowa, 59. It appears in that case that defendant was the proprietor of a brewery and had one Roenspeiss in his employ, whose duty it was to guard the brewery property and quell disturbances. It further appears that one David Grolden, being drunk, threw abrick into the brewery, whereupon Roenspeiss started out after him. Q-olden turned and ran away and while so running Roenspeiss shot and. killed him. On this state of facts the court said: “The theory of appellant is that Roenspeiss was employed to guard and protect the brewery, for which purpose he was furnished with a pistol, and that he shot the deceased while in the line of his duty. Without determining whether, if this was all, the. defendant would be liable, we think the fact that the deceased was retreating from the brewery at the time the fatal shot was fired, shows conclusively it was not fired for or with the intent of protecting the brewery, or in the line of Roenspeiss’ duty. If Roenspeiss had shot with the pistol from the brewery a person peaceably passing along the highway, the defendants clearly would not have been liable, and we think there is no essential difference between the case supposed and the one at bar.
But it is useless to multiply authorities. It is too plain for argument that the act of the swing brakeman, Lamb, whether of a willful, malicious or wanton, or of a negligent character, had no sort of connection with his employment. Suppose the fireman or bag-' gageman, neither of whom had any duty of any kind to perform in the caboose, had been occupying the seat in front of the conductor, instead of Lamb, and while so doing had given utterance to the wild exclamation that it is alleged that Lamb did, no one would pretend that the harmful consequences of such utterance could be visited upon the defendant. In such case, can it be said that they had done an act “in the doing of which” they had been guilty of negligence, in the course of their employment, as servants of defendant? We think not. If the defendant is not responsible for the negligence of the latter, why for the former, since the wrongful act in one case is as entirely without connection with the employment as in the other. Lamb was a swing brakeman, whose duties were as much outside of the caboose as those of the fireman and baggageman. He was engaged in the performance of no duty, though then in the employment of defendant. If at the time he is alleged to have made the exclamation he was at the brake in the caboose,. though only temporarily in char’ge thereof, in the place of the brakeman who was regularly assigned to duty there, we should not doubt the responsibility of the defendant for the injurious consequences occasioned thereby. But even though he did make the exclamation attributed to him, yet if he was not at the time in the west side of the cupola, nor at the brake from the time the
It seems to us that the defendant was entitled, on the evidence adduced by it, to go to the jury upon this theory, and that the refusal of the court to permit it to do so, as was the case under its instruction number 5, as asked by it, was error.
Spohn v. R’y, 87 Mo. 81, and 101 Mo. 452, was where the conductor uttered the terrifying threat. His utterances were undoubtedly those of a vice-principal and for which the principal was clearly responsible. The plaintiff, we think, is in error in supposing the rule to which we have adverted is inapplicable in every case where the injured party sustains the relation of passenger to the carrier.
Sherman v. R’y, supra, was where the injured person was a “free passenger” and the principle was in-
If the evidence adduced by defendant is to be believed, then it is plain that the plaintiff, from his opportunities of observation, either knew or ought to have known that Lamb was neither then acting in the capacity of conductor nor brakeman, and that he was not then engaged in the discharge of any duty within the scope of his employment. The evidence tends very strongly to show that Lamb did not utter the exclamation; or that if he did, it was not while engaged about the defendant’s business, and that plaintiff either knew or ought to have known the latter fact. Unless the evidence of defendant’s witnesses is wholly unworthy of credence, it is hard to escape the conclusion that the proximate cause of the plaintiff’s injury is referable to his own heedlessness and imprudence rather than to the act of the brakeman, Lamb.
The plaintiff’s first instruction in effect told the