88 Mo. 360 | Mo. | 1885
This was an. action, for damages for an injury alleged to have been done to plaintiff by defendant and its employes while engaged in loading a wrecked car upon a wrecking train of defendant. The action was commenced in the Lincoln circuit court, and afterwards transferred to that of St. Charles, where there was a verdict and judgment for plaintiff for ten thousand dollars, from which the defendant appealed to the St. Louis court of appeals, where the judgment of the circuit court was reversed and the cause remanded, from which the plaintiff appealed to this court.
The case is reported in 11 Mo. App. 574, where the general facts of the case appear, except that the record shows the extent and nature of the powers, duties, and jurisdiction of Tracy, as road master of defendant, more fully than appears by the opinion. The controlling question in the case, and upon which it was made to turn in the court of appeals, is whether the plaintiff and said Tracy were fellow servants in the transaction in which the injury was received, or whether said Tracy in said transaction acted as vice principal or alter ego of the defendant company. The court of appeals in effect held that the plaintiff and said Tracy were fellow servants, and that it did not appear that the injury complained of arose from any negligence of Tracy’s in the matter of employing hands, or in any matter in which he replaced the master, or in any of the business in which he was vice-principal or alter ego of the master, and that plaintiff could not, therefore, recover, and for that reason reversed .the judgment of the trial court and remanded the cause, and the propriety of this ruling is now the
The record also shows that in August, 1879, a supply train of defendant’s cars, consisting of three box and three flat cars, had been wrecked on defendant’s road, near Foley station,. and the evidence on the part of the' plaintiff tended to show that the plaintiff at the time of the injury complained of was working in defendant’s employ as a laborer under Michael Fitzgerald, an agent and servant of defendant, who was superintending, or bossing, the body of laborers, of whom the plaintiff was one; that plaintiff was acting as a laborer under the direct supervision, direction, and control, of John Tracy, who was defendant’s road master, and as such had control of the road bed and track of defendant’s entire line, with the powers, duties and jurisdiction heretofore stated in that behalf; that said Fitzgerald was section and construction foreman of defendant, and was assisting said “Tracy in superintending plaintiff and other laborers in removing the wreck and loading a flat car,” whose wheels and trucks had been broken off, upon a wrecking train, both of which were owned by defendant, and being controlled by defendant’s agents. The wrecking train was composed of an engine and flat cars, and
“ Those given for the plaintiff are two in number, as follows:
“1. If the jury find, from the evidence, that one John Tracy was the road master of defendant’s railroad, and as such road master was the superintendent for the defendant of the work of removing and loading up the wreck in question, and had entire control and charge thereof, with power to employ the section foreman and section hands, and that the plaintiff was subject to his orders and directions, then the jury are instructed that said Tracy was not a fellow servant with the plaintiff, and that said Tracy’s acts and conduct in connection with said work were, and are, the acts and conduct of the defendant, so far as this case is concerned.
“2. If the jury believe, from the evidence, that the plaintiff, while employed by defendant as a section hand, on or about the fifteenth day of August, 1879, in the discharge of his duty as such section hand, was ordered by his superior to step under the wrecked car and push out a certain lever, and that in the discharge of said duty, and in obedience to said order, plaintiff stepped under said car, and while engaged in attempting to carry out said order, the defendant, through negligence or mistake, and without warning to plaintiff, gave to the person in charge of the engine, a signal to move said engine and the cars attached to it southward, when the proper signal would have been to move the engine and the cars attached to it northward, and that in obedience to said signal the person in charge of the engine moved said engine and cars attached to it, southward, and that in consequence thereof said wrecked car fell upon and injured the plaintiff, the verdict must be for the plaintiff.
“To the giving of which instructions by the court, the defendant at the time excepted.
“1. If the jurors believe, from the evidence, that at the time the plaintiff was injured, he was an employe of the defendant, and engaged with a number of other men in loading a wrecked train on a flat car, attached to an engine on defendant’s track, and that John Tracy, defendant’s road master, gave a signal to the engineer in charge of the engine, to move his engine northward, and that the engineer, instead of moving his engine northward, moved southwardly, and that the plaintiff ’ s injury was caused by the southward movement of the engine and the cars thereto attached, the plaintiff cannot recover, and they must find for the defendant.
“2. Even though the jury may believe, from the evidence, that plaintiff’s'injury was caused by the southward movement of the train by the engineer in charge, in obedience to an order of John Tracy, defendant’s road master, so to do; yet, if they also believe, from the evidence, that said engineer had reasonable grounds to believe that this was a wrong signal,.and that obedience to the signal would cause damage or injury, the plaintiff cannot recover, and the finding must be for the defendant.
“3. -If the jury believe, from the evidence, that prior to the happening of the accident which caused the injury to plaintiff, defendant’s road master, John Tracy, gave the men employed in loading the wrecked car on another flat car warning that they must get out of the way, that he was going to move the train, or words to that effect, and that said warning was given in sufficient time, before the movement of said train, for said men to get out of the way, and loud enough for the men to hear said warning ; and shall further believe that plaintiff, in the exercise of reasonable care, could have heard said warning, and failed to get out of the way, then the defendant is not liable in this action, and the verdict should •be for the defendant, unless the jury further find that
“The court gave the following instruction upon its own motion:
“9. The court instructs the jury that a servant of a corporation who is injured by the misconduct or negligence of his fellow servant, can maintain no action against the master for such injury, and that this rule applies in all cases, without regard to the degree of subordination in which the different servants or agents may be placed with reference to each other, and if the jury find, from the evidence, that plaintiff, Tracy and Fitzgerald, were, at the time of the injury complained of, all employes of defendant, in the. service of the defendant, then the verdict of the jury must be for defendant, unless the jury should also find and believe, from the evidence, that the road master, Tracy, had sole charge and control of the work as sujjerintendent thereof, with power to employ the hands employed, and that the plaintiff was, at the time, subject to his order, and that the injury complained of was caused by his (the said Tracy’s*) negligence.
“Defendants asked the court to instruct the jury, ‘that if plaintiff, and Tracy and Fitgerald, were fellow servants of defendant, all engaged at a common employment at the time of the accident, and the injury was caused by Tracy’s negligence in giving a wrong signal, defendant is not liable; ’ and, also, ‘ that if Tracy was road master of defendant, with authority to employ and discharge hands, yet, unless plaintiff was injured by some negligence of Tracy in the employment of unfit men, or the providing of unsafe appliances, the verdict must be for defendant.’
“These declarations of law were refused.”
The court of appeals held that instruction number two, given for plaintiff, was erroneous and unwarranted by
In the case at bar, as has been seen, Tracy, whose negligence and carelessness in giving signals to the engineer occasioped the injury in question, was not at the time engaged or assisting in the manual work of removing said wreck from the road bed and track of defendant, or in loading said wrecked car upon said wrecking train, nor does it appear to have been his duty, as road master, so to do, but was engaged as such in superintending, directing and controlling said laborers, including plaintiff, in said work, and in that particular was in the line of his duty as road master of defendant, and under the .authority of said case of Moore v. Wabash, St. Louis & Pacific Railway Co., supra, said Tracy and plaintiff were not fellow servants, but that Tracy, in the transaction in which the injury in question was received, represented the master, and in that behalf was acting as vice-principal, or alter ego, and that his negligence, in that particular, was the negligence of the defendant, for which it is liable. Various other questions were raised in the progress of the trial, and suggested and argued in briefs of counsel, which we have not overlooked, but we have not deemed them material to the proper disposition of the case and will not be further noticed.
The question we have considered was raised at every stage o£ the proceeding: First, by way of objection to the reception of any evidence at the trial; second, b/ way of demurrer to plaintiff’s evidence; and third, by way of instruction; and manifestly was, and is, the principal and controlling question in the cause.