100 Mo. App. 617 | Mo. Ct. App. | 1903
The plaintiff was a fireman in the employ of the Chicago & Alton Railway Company’ and while on one of its engines running on the tracks of another road, viz., the Union Pacific Railway Company, it collided with one of defendant’s trains then being run over the Union Pacific track whereby plaintiff was seriously injured. The plaintiff prevailed in the trial court.
The evidence disclosed that the defendant run its trains west out of Kansas City, Missouri, over the tracks of the Union Pacific Railway Company under a contract between them; and that the engine on which plaintiff was riding was a switch engine engaged in switching and at the time was on the same track. There was evidence tending to show that defendant’s trains while running out of Kansas City, over the tracks of the Union Pacific, were under the control, direction and orders of the latter company. There was also evidence given, by the general superintendent of the latter company, that such trains were run under the joint rules of that company and the defendant; that is to say, under the rules of that company adopted by the defendant and issued by it jointly with that company. Defendant asked a peremptory instruction that plaintiff could not recover.
Since, as before stated, there was evidence tending to show a joint control, the trial court was right in refusing the peremptory instruction.
But defendant asked a further instruction (number five) submitting the hypothesis of its servants being under the control of the Union Pacific alone and not under its control, and this was refused. By such action the court committed harmful error against defendant, since there was evidence tending to support the instruction.
For' the reasons aforesaid the judgment will be reversed and cause remanded.