153 Mo. 380 | Mo. | 1900
The following opinion of Division No. One is hereby adopted as the opinion of the Court in Bane.
Gantt, O. J., Sherwood and Valliant, JJ., concur. Burgess and Bobinson, JJ., concur in the judgment of reversal, on the ground that the negligence of the engineer was the cause of the injury and. thait the engineer and fireman were
It is therefore ordered that the judgment of the circuit court be reversed.
IN DIVISION ONE.
MARSHALL,- J. — This is an adtion for damages for personal injuries received by plaintiff at McElhaney switch, i n Newton county, Missouri, between the hours of 1 and 2 o’clock p. m. on July 12th, 1894. The petition charges that it was a switch station where trains stop only when signaled; that there is a side track, on the east side of the main track, long enough to hold eleven standard freight stock cars; that at each end of the side track there was a switch post placed on the east side of the main track instead of the west side, each post being about six feet and four inches from the east rail of the main' track and used to work the switch; that the switch posts have targets placed on their tops, one side being painted red and the other white, so that the color indicates whether the switch is thrown to connect with the switch or with the main track— the red signifying that the connection is with the switch and the white that it is with the main track, and that when the red appears it is dangerous for trains to attempt to pass over from the opposite direction; that on July 12th, 1894, the switch or side track was full of empty freight cars, there being eleven standard freight cars on iit, which were put there by defendant on July 11th, 1894, “making it impossible to see the target on the switch post at the south end of the switch track by those seated in engine cabs of trains moving south along said place until within 60 or 80 feet of said switch post; that the ties supporting the main track at the south end of the sido track were rotten and would not hold the spikes that were intended to hold the rails in place; that at the south end of the switch track” was what is known as “a ‘stub rail’ switch, an old and abandoned and extremely dangerous and hazardous
Plaintiff then sets out the negligence of the defendant to be:
“In permitting the empty cars to be and remain on the side track or switch aforesaid, and thereby preventing plaintiff and said engineer (who was killed) from seeing the signal target of the switch, which would advise them of the danger on account of said switch or track being moved out of place:
*388 “In having said switch rods and targets on the east side of said main track instead of on the west, where it ought to have been for the appliance to be reasonably safe, and where proper and ordinary railroading required them to be placed, and where a person in the exercise of ordinary care and foresight would in view of the great danger involved have placed them:
“In having at that place an unsuitable and unsafe ‘stub-rail’ switch instead of a ‘split’ or ‘spring’ switch, which latter are entirely free from the danger which produced this accident and which ordinary care and foresight on the part of the defendant would have, caused it to provide:
“In permitting said engine to be out of repair, and said ‘pops’ to be and remain loose, out of repair, and unsafe and in a dangerous condition as above stated:
“In having on said switch post an unsuitable and unsafe lock.”
The answer admitted defendants’ incorporation and ownership of the road, and also the allegations as to the character, purpose and working of the switch, and denied the other allegations of the petition. It then pleaded contributory negligence of plaintiff and the engineer, and averred that it was the dutyof the plaintiff and the engineer to see that the switch was correctly set and the track clear before attempting to pass over it, and that they failed to exercise ordinary care in not stopping the engine where the cars on the side track obstructed the view of the target until they could ascertain whether the track was safe to pass over; that plaintiff knew the character of the switch and the condition of the engine and that notwithstanding they ran the train over the switch at a high rate ox speed and caused the accident; that plaintiff and the engineer wrere in .possession of the rules of the company defining and prescribing their duties, one of which, No. 65, was, “A signal imperfectly displayed, or the absence of a signal at a place where a signal is usually shown, must be regarded as a danger signal;” another, No. 18, was, “All signals must be used
The reply was a general denial, but during the trial it was amended so as to allege that when the train approached McElhaney station, it slowed up with the intention of stopping there and at a point a short distance north of the end of the switch, and had almost stopped, when the conductor ordered the engineer not to stop, but to go on, whch was done against plaintiff’s protest, and he was powerless to prevent it or otherwise protect himself.
The trial disclosed the facts to be that the plaintiff about June 1st, 1894, began to run as a fireman on the local freight train between Pittsburg, Kansas, and Siloam Springs, Arkansas, and with the exception of a few days made daily trips, an 1 in doing so passed this switch every day. The train crew on the day of the accident were Jay Traver, engineer, George Bartholic, conductor, J. A. Cellar, brakeman, and plaintiff, fireman. There were two local freight trains running daily, one each way, between Pittsburg and Siloam. They usually met at Donahue, a station four miles north of McElhaney switch. On this day the south bound train, on which plaintiff was fireman, was late, and hence the freight train met ait Neosho, between 12 and 1 o’clock p. m., the accident occurred between 1 and 2 p. m., the running time between Neosho and McElhaney was fifteen or twenty minutes, so that the north bound freight passed safely over the switch in question about thirty to forty minutes before the accident. The defendant had only acquired ithe portion of the road between Joplin, Mo. and Sulphur Springs in May, 1894, and had therefore only been operating it from May to July 12th, when the accident occurred.
When the train approached McElhaney the engineer brought it almost to a stop, at a point eighty rods north of the north end of the switch. At this point the plaintiff notified the engineer that the side track was full of cars and that he could not see the target of the switch at the south end of the side track. The engineer said: “I am going, I have a signal
I.'
The case was tried below on the theory that the conductor was a vice-principal and that his orders to the engineer to go ahead overcame the rules as to signals, unless the danger was so apparent and imminent as to deter a person of ordinary prudence from proceeding, and if the plaintiff, as fireman, was under the control and subject to the orders of the engineer, and had no control over the engine, and if plaintiff notified the engineer that the switch target was obscured by the cars standing on the side track and notwithstanding the engineer went airead, “then the acts of the said engineer in so doing should not be regarded as the personal acts of plaintiff unless he concurred therein.”
The controlling legal questions in the case therefore are: First. Are the conductor, engineer and fireman of a train fellow servants, or is the conductor a vice-principal, and the engineer and fireman fellow servants, or is the conductor a vice-principal, the engineer a lesser vice-principal and the fireman the servant; and, second, was the defendant negligent in not furnishing safe appliances and machinery, that is, in maintain
There is no branch of the law that has. received more attention than that relating to master and servant, and there is none as to which a greater diversity of opinion has been expressed, and certainly none that is to-day more uncertain.
The old doctrine that all persons under the control and in the pay of a common master are fellow servants, and that the master is not liable to any one for injuries received through the negligence of any of the others, has been relaxed; modified, distinguished and pared down, and with the characteristic ingenuity and inventiveness of the age, distinctions have been drawn, the first relation has been extended many degrees and 'the original classification has been many times subdivided, with the result that much contrariety of opinion exists, and the whole matter is unsettled and left in an unsatisfactory state. By some this has been called the evolution of the law from its original harshness to a more humane condition. By others it is placed upon the ground of necessity, that is, that where the master has a small business and only a few servants under his own eye and personal supervision, and where all of the servants are “Jacks of all Trades” in respect to the master’s business, each doing any part of the whole, as he may be directed, they are fellow servants and have no recourse against the master for injuries received through the negligence of the others, but where the master’s business increases, and becomes more extended, and spreads out into many places, and, perhaps, over many states, so that the master can not be always present in person to direct or to hear reports from his servants, it is, of course, necessary for him to have some one on the spot to represent him, an alter ego
No serious objection can be raised to this rule in the abstract, for a master choosing to have a scattered or diversified business which he can not personally look after, must needs have a representative on the ground, and hence taking the benefits of such an extended business, he must bear the burdens necessarily incident to its transaction. At first a vice-principal was limited to be a person who had the right; to employ and discharge the servants, but this has since been relaxed; and the rule now is that it is a question of authority to represent the master which determines the question of whether a person is a vice-principal. The courts have often been asked to lay down a definite principle or rule for the determination of the question, but as was well said by Gantt, T., in Parker v. Railroad, 109 Mo. l. c. 378: “After a careful examination of this subject, in its varied aspects, we think the attempt would be futile and unsatisfactory. The judge or court who would deal in general observations outside of the. record under consideration would be treading on dangerous ground, and in a very short time would probably find himself hoisted by his own petard’......
“And after due consideration we are of the opinion that, unsatisfactory as it may seem, the rule itself must remain general, its application specific, as the cases arise. This rule, to exempt the master, requires the servants shall be employed by a common master, and the servants must be employed in the same common employment.” Accordingly in that case it was held that a section hand engaged in repairing the track was a fellow servant with the engineer and crew running a construction train that was hauling rock to be used in ballasting' the track.
The practical difficulty in trying to enforce the departmental doctrine is that it is nowhere stated of what the departments shall be composed. The term or name is employed as expressive of a class, but there has been no attempt to classify. The result is contrary judgments upon the same facts, an irreconcilable contrariety of opinion, with a natural and to-be-expected confusion in the law, with no better or more satisfactory results to either the master or servant than were attained before the doctrine was announced. A brief review uf the decisions in our State will suffice to illustrate.
McDermott v. Railroad, 30 Mo. 115, was the first case in which the doctrine of fellow servant was discussed. It was a suit by a brakeman who was injured by the Gasconade bridge disaster in 1860. Napton, J., held there could be no recovery as the brakeman and bridge builders were fellow-servants, and that the rule “applied in all cases alike, without regard to the degrees of subordination in which the different servants or agents may be placed with reference to each other,” citing with approval Farwell v. Railroad, 4 Metc. 49. Wagner, J., in Rohback v. Railroad, 43 Mo. 187, held a track repairer and a trainman were fellow servants. In Moore v. Railroad, 85 Mo. 588; Henry, J., held that a car repairer and the crew of the engine that ran into the car the repairer was working on, were not fellow servants, and allowed a recovery to stand on the ground that the company was obliged to provide for the safety of the servant, and the foreman of the repair shop had promised the repairer to see to it that no engine should run into the car which was standing on the side track and which he was repairing. In McGowan v. Railroad, 61 Mo. 528, Hough, J., held that a conductor and a laborer engaged in loading bridge timbers on the train were fellow servants. In Smith v. Railroad, 92 Mo. 359, Norton, J., held that a train-
In Schlereth v. Railroad, 115 Mo. 87, Burgess, I., held that a locomotive engineer 'and track repairer are not fellow servants. In this case Maoeablane, J., wrote the opinion of the court in Division No. 2, and said: “It is insisted in the first place that the demurrer to the evidence should have been sustained for the reason, as is claimed, that deceased and the negligent engineer were fellow servants within the rule which exempts the master from liability for damages to one servant resulting from the negligence of the other. There is no doubt that the weight of judicial authority sustains the position foi which defendant contents. [Murray v. Railroad, 98 Mo. 573.] The majority of the members of this court are of the opinion however that the reasons and policy upon which the rule of exemption has been placed do not extend to those common employees of a railroad corporation occupying the relation to each other sustained by deceased and the engineer. The writer has been of the opinion that the general rule exempting the common master in all cases where the servants are engaged in a common service, has been recognized and approved by the courts of this State for so long a period of time, without change or serious question, that while the principle has been questioned it has become‘the settled policy of the State and should only have been changed by legislative action. [Rohback v. Railroad, 43 Mo. 192, and cases cited in dissenting opinion of Gantt,L, in Parker v. Railroad,
In this connection it is well to rote that in the Parker case Gantt, Sherwood and Macearlane, JJ., held that the section hand and the engineer of the construction train were fellow servants, and hence they voted to reverse the judgment in plaintiff’s favor, while Black, J., held they were prima facie fellow servants but that it might be rebutted by plaintiff, and so voted to reverse and remand, and Thomas, Brace, and Barclay, JJ.,were of opinion that they were not fellow servants, while in the Dixon case Black, Brace, Barclay and Thomas, JJ., held that the laborer and the engineer were not fellow servants, and Sherwood and Gantt, JJ., held they were and'Macearlane, J., having been of counsel, did not sit.
In Swadley v. Railroad, 118 Mo. 268, Black, P. J.,held that a track repairer was not a fellow servant with the train crew of a regular freight or passenger train, and distinguished the case from the Parker case, where it was a crew on a construction train and a track repairer. In Rutledge v. Railroad, 123 Mo. 121, Barclay, Black and Brace, JJ., held a switch-man and the engineer were fellow servants. In Jones v. Railroad, 125 Mo. 666, Macearlane, J., held that a porter in
This is tbe state of tbe adjudications in our State, and similar conditions exist in other States where tbe departmental doctrine has been introduced into tbe decisions. Can any man, however learned in the law, however abstruse bis analytical faculties, or however discriminating bis logical.powers, deduce any rule from these adjudications, or define 'the departments or classify or arrange tbe classes? Is tbe servant better protected or more humanely treated by this doctrine than be was before its adoption? Is tbe master’s duty made plain, or tbe labors of tbe bar and tbe courts made lighter? In practical operation is it not true that these cases are, at l'ast, decided according to their individual merits as they appeared from tbe facts proved, and as tbe justice of each seemed to tbe judge deciding them to require when gauged by tbe old, tried and accepted standards of tbe common law? Is it not a fact that tbe departmental doctrine exists only in theory and not in practice?
Tbe only definite definition of a department that is attempted by any of them is by Black, J., in Parker v. Railroad, supra, when be puts clerks in tbe office in one department, and servants operating a train in another. Yet in that same case it was beld that a track repairer and tbe train crew of a construction train were fellow servants because in the same department, while in tbe Dixon case, which immediately follows the Parker case in tbe same volume of tbe reports, it was beld that a laborer who attached tbe rope to a small car used to haul rock to a rock crusher and intended for ballasting the road, was not a fellow servant with the engineer of a
If it be said that these cases show the evolution of the law, how can the Relyea case (112 Mo. 86), be reconciled with the departmental idea ? The brakeman on the one train and the fireman on the other can not observe the conduct of each other and give notice of “misconduct, incapacity or neglect of duty.” In short, it may be pertinently asked ^hat is the classification into departments of service which these cases create or authorize or recognize? Is it that clerks in the office constitute one department, train dispatchers another, the crew of a passenger train another, the crews of two freight trains another, the crew of a construction train and the track repairers another, the track walkers a department unto themselves, the mechanics in the shops another, etc., etc. ? If so, are these all the departments, or if not, what others are there ? Measured.by experience and tested scientifically, if there is to be a division into departments, it should be, 1st the mechanical, 2d the operative, 3rd the clerical, 4th the managerial, and 5th the executive. This would come nearer the natural and business division of work. The road could not be run without the engine and cars, the mechanical appliances; nor would the machines move without they were operated by human beings, nor could they move without tracks and there could be no tracks without human beings to build them and keep them in repair; nor could the machines be built and the tracks
The lower court in this case treated the conductor as a vice-principal, whose order to the engineer, to go ahead,* amounted to a suspension of the rule which required the engineer to look out for the signals or targets, and also treated the engineer as a vice-principal whose disregard of the warning of the plaintiff that he could'not see the signal or target was the same as the negligence of the master, and because of his relation to the fireman, held that they were not fellow servants.
It is not denied that in so treating the conductor in his relations to the engineer and fireman, the lower court followed the case of C., M. & St. P. Ry. Co. v. Ross, 112 U. S. 377, which so holds, but in 'the light of subsequent decisions of that distinguished tribunal, the Eoss case can not now be considered the law in that court. [Railroad v. Baugh, 149 U. S.
In this case the order to go ahead was given by the conductor, who was in the caboose, at the rear of the train, eating his dinner, to the brakeman, Avho in turn signaled it to the engineer. Neither could see then or under usual eircum
It follows that the circuit court erred in holding that the conductor was a vice-principal and also in holding that' the engineer and the fireman were not fellow servants.
II.
It is insisted, however, that the master was bound to furnish his servants with safe and suitable appliances for the work, and that it failed in this regard by furnishing a stub-switch instead of a split-switch or split-spring switch, and that if either of the latter had been furnished, the accident in this case would not-have occurred.
It is settled law that it is the duty of the master to fumi»h safe and suitable appliances for his servants to use. He owes this duty to his servant, but his liability in this regard must not be confounded with any question of fellow servant.
The placing of the target on the same side of the main track with the side track is claimed to be negligence. If it. had been placed on the other side of the main track, it could
III.
'But Missouri is not alone in respect to the uncertain state of the law relating to this subject. Speaking on this matter, Corliss, C. J., in Ell v. Railroad, 48 N. W. Rep. 222, aptly says: “This issue of law we are to determine, and our investigation must run along the line of general principles for the adjudications upon this subject — so multitudinious as
The learned judge, speaking of the test sometimes applied of power to observe and right to report the conduct of each other, as decisive of the relation of master and servant, or cf whether the injured and the negligent servant belong to the same “department of service,” says: “Many of the cases holding the master exempt from liability under the fellow servant rule, were as we have said, cases in which the injured servant could not possibly have exerted influence over the negligent servant. Their separate departments of service, or their usual stations of employment, kept them, as a rule, entirely aloof from each other. In the following cases the relation of fellow servant was held to exist between persons who could exert little, if any, influence over each other: Steamship Co. v. Merchant, 133 U. S. 375—the carpenter, the porter and stewardess of a steamship; Railway Co. v. Welch, 72 Tex. 298—foreman of a bridge gang, and servants operating train; Elliott v. Railroad, 5 Dak. 523—a section foreman and a conductor; Eagundes v. Railroad, 79 Gal. 97 — a laborer employed to remove snow from track and a conductor; Baughman v. Superior Court, 72 Gal. 573—a conductor and a brakeman; Randall v. Railroad, 109 U. S. 478—a brakeman and a conductor of different trains; Van Wickle v. Railway Co., 32 Fed. Rep. 278—a track repairer and an engineer; McMasters v. Railroad (Miss.), 4 South. Rep. 59—brakeman of one train and an employee on another; Naylor v. Railroad Co., 33 Fed. Rep. 801—engineer and switchman; Van Avery v. Railroad Co., 35 Fed. Rep. 40—engineers of different trains; Connelly v. Railroad Co. (Minn.), 35 N. W. Rep. 582—a
In the same case attention is called to the reasoning of JudgeCooLEYin his work on Torts (543), in which he combats the idea that the question can be solved by reference to the grades of the injured and negligent servants respectively, and denies that reason or logic or public policy gives sanction to such a doctrine.
Reference is also made to the article of Judge Dillon in 24 American Law Rev., 175, which is so appropriate to this case as to justify its verbatim reproduction here, as follows: “The master owes certain defined, personal, inalienable, nonassignable duties towards servants. These personal duties may be devolved on others by the master, but not without recourse on him......In the general American Law as I understand it, the doctrine of vice-principal exists to this extent and no further, viz.: That it is precisely commensurate with the master’s personal duties towards his servants; as to these the servant who represents the master is what we may call for convenience a vice-principal for whose acts and neglects the master is liable. Beyond this the employer is liable only for his own personal negligence. This is a plain, sound, safe, and practicable line of distinction. We know where to fin(L it and how to define it. It begins and ends with the personal duties of the master. Any attempt to refine based upon the notion of ‘grades’ in the service or, what is much the same thing, distinct ‘departments’ in the service (which departments frequently exist only in the imagination of the judges and not in fact), will only breed the confusion of the Ohio and Kentucky experiments, whose courts have constructed a labyrinth in which the
In view of the dubious state of the law on this subject in our own and sister States, brought about by the introduction of new, but not useful, rules and theories, is it not time to set the target signal of danger, and to return to the beaten track, lit up by the “gladsome light of jurisprudence,” which the experience of ages, and the wisdom of the brightest legal minds of the world has laid out for us, and to cease, like moths, to burn our wings in the candles of “grades” and “departments ?”
The judgment of the circuit court is reversed. Robinson and Williams, JJ., concur in the judgment of reversal herein, on the ground that the negligence shown was that of the engineer, who under the decisions in this State, was a fellow servant with the plaintiff, but do not regard the “departmental doctrine” as involved in this case.