| Mo. | Mar 31, 1910
This suit was brought by the widow of M. M. Matthews, deceased, against the defendants, to recover $10,000 damages sustained by her through their alleged negligence in killing her said husband. A trial was had in the circuit court of Au-drain county, which resulted in a judgment in her favor against both defendants for the sum of $9000. In due time and in proper form both appealed the cause to this court.
Many questions are raised and discussed by counsel for both the plaintiff and the defendant company, but the view we have taken of the case renders it unnecessary for us to notice but one of them, which will be presently stated.
The deceased was foreman and the day hostler for the defendant railroad company at Francis, Audrain county, and was killed by an engine of said company on February 26, 1906, in the yards at Francis. The engine at the time of striking Matthews was being run by defendant Stone. One C. D. Glaves was night hostler in the same yards, and said Stone was a hostler’s helper. His duties were to assist the hostler, and do ordinary day labor in and around the yards and roundhouse. He was employed by Matthews and was under his sole charge, and was subject only to his orders.
The defendant Stone, as well as all other hostler helpers, learn to be hostlers and engineers under the eye, supervision and direction of the hostler, and, ordinarily, when they become proficient in that business, they assist the hostler in the actual operation and running of the engines; but in this particular instance Stone, it seems, had not performed this particular branch of his duties in a satisfactory manner to the master mechanic of the company, who had charge and control of all hostlers and their helpers. A previous accident had occurred at Francis while Stone, the helper, had charge of the engine, and because of that accident, the master mechanic, I. N. Wilber, sent Matthews, the deceased, the following letter of instructions, to-wit:
“Mr. W. W. Matthews, Foreman, Francis.
“Dear Sir: Why was the hostler’s helper handling engine No. 121 this morning? What was the hostler doing? This is the second accident we have had at Francis where the helper was handling the engine. Now, from this time on have it understood that the hostler only is to handle the engine.
“Tours truly,
“I. N. Wilber.”
A blinding snow storm was raging on the morning of and at the time of the accident which, resulted in the death of Matthews. About forty minutes previous to the accident, Stone ran the engine down to the office, where Matthews was performing some duty to the company. Upon reaching the office the latter instructed Stone to run the engine back up to the roundhouse and shovel the snow out of the turntable tracks, and
While they were on the way up there for that purpose, without the knowledge or assent of Matthews, Stone, in violation of his orders to remain at the roundhouse until he, Matthews, and the section men reached there, boarded the defendant’s engine and started back to the office for Matthews and the section men, who-were walking along the center of the track, meeting the engine. Because of the snow or for some other reason none of them saw the engine until it was right on them. All jumped from the track, but Matthews and the section foreman were not quite quick enough to completely clear it, consequently Matthews was killed and the foreman injured.
There was evidence introduced tending to show that the whistle was sounded, and that Matthews could have seen the approaching engine in time to have left the track in time to have avoided the injury; and that the defendant Stone could have seen Matthews in his perilous position in time to have averted the injury had he exercised ordinary care.
I. Predicated upon the facts before stated, counsel for the appellant, the railroad company, insist that the respondent was not entitled to a recovery' against it, for the reason that Matthews, in violation of express written orders from the master mechanic, intrusted Stone with the operation and movement of the engine which struck and killed him; or that if Stone, as respondent’s evidence tended to show, was moving the engine at the time it struck and killed Matthews, in
As to the first insistence, it is sufficient to say that it is no longer an open question in this State that, when an employee is injured in consequence of the violation of the master’s instructions, the law will not permit a recovery in favor of the former against the latter, for the reason that by so doing the servant assumes all the risks which are incident thereto, and must suffer without compensation all injuries sustained by him in consequence of said assumed risks, except in those cases where the evidence shows that the rules of the master were being violated by the servant with the knowledge and consent of the master, or with knowledge and without objection on his part. [Francis v. Railroad, 110 Mo. l. c. 394, 395; Francis v. Railroad, 127 Mo. 658" court="Mo." date_filed="1895-03-19" href="https://app.midpage.ai/document/francis-v-kansas-city-st-joseph--council-bluffs-railroad-8011730?utm_source=webapp" opinion_id="8011730">127 Mo. 658; Alcorn v. Railroad, 108 Mo. 81" court="Mo." date_filed="1891-10-15" href="https://app.midpage.ai/document/alcorn-v-chicago--alton-railroad-8010336?utm_source=webapp" opinion_id="8010336">108 Mo. 81; Schaub v. Railroad, 106 Mo. 74" court="Mo." date_filed="1891-04-15" href="https://app.midpage.ai/document/schaub-v-hannibal--st-joseph-railroad-8010187?utm_source=webapp" opinion_id="8010187">106 Mo. 74; Railroad v. Thomas, 51 Miss. 641; Shanny v. Androscoggin Mills, 66 Me. 429; Lockwood v. Railroad, 55 Wis. 50" court="Wis." date_filed="1882-05-10" href="https://app.midpage.ai/document/lockwood-v-chicago--northwestern-railway-co-6603778?utm_source=webapp" opinion_id="6603778">55 Wis. 50; Lyon v. Railroad, 31 Mich. 429" court="Mich." date_filed="1875-04-13" href="https://app.midpage.ai/document/lyon-v-detroit-lansing--lake-michigan-railroad-7927987?utm_source=webapp" opinion_id="7927987">31 Mich. 429.]
According to this well-established rule of law, as enunciated by the adjudications of the courts of this and other States, respondent was not entitled to a recovery, if Stone, at the time of the injury, was running the engine in obedience to the orders of her husband, for the reason that the letter written by the master mechanic to him was a plain and positive instruction for him not to permit Stone to operate the engines in the future.
Counsel for respondent attempts to escape the effects of that letter by contending that Matthews may not have understood the letter, because the evidence showed that it was a part of the duty of helpers to run engines under the supervision of the host-, ler, and in the light of that fact he may have under
The letter is not susceptible of any such construction, for it plainly states, “Now from this time on have it understood that the hostler alone is to handle the engine Mr. Stone was not a hostler, and Mr. Matthews knew that fact when he saw the former run the engine down to the office, and when he ordered him to run it back to the roundhouse and there remain until the section men arrived there for the purpose of turning the Chicago So Alton engine.
It is, therefore, perfectly clear that plaintiff cannot recover under that theory of the case.
But in order to escape the effect of the conclusion just drawn, counsel for Respondent insists that the record discloses the fact to be that Stone was not only not running the engine in obedience to Matthews’ orders but in direct violation of them, in that he told Stone to take the engine back up to the roundhouse and to there remain until he, Matthews, and the section men came up to turn the Chicago So Alton engine.
In taking this horn of the dilemma, respondent is met with the second contention made by counsel for appellants, namely, that if Stone was not acting under the orders of Matthews, then he was not representing the company at all, but was a trespasser upon the engine and was operating’ it without authority from the company.
Counsel for respondent, by abandoning the first position, which they were forced to do, and assuming the second, also state themselves out of court, for the reason that the record conclusively shows that Matthews employed Stone, that the latter was under the charge and control of the former, and that no one else was authorized to give orders or instructions to him. Consequently, if Stone was not acting under orders from Matthews, then he was not acting at all for the
So it is wholly immaterial wbicb born of tbe dilemma counsel for respondent take, it points to a rule of law wbicb absolutely bars all right to a recovery in this case; and tbe court should have so declared tbe law to tbe jury.
For tbe errors suggested, tbe judgment of tbe circuit court in so far as it affects tbe defendant company is reversed, and judgment is here entered in its favor and against tbe respondent.
But tbe judgment in so far as it relates to tbe defendant Stone will have to be affirmed, for tbe reason that be has not complied with tbe rules of this court, requiring abstracts of record and briefs to be filed in this court. It is so ordered.