109 Mo. 350 | Mo. | 1891
The plaintiff, the widow of Joshua Miller, brought this suit to recover damages for the
The deceased was one of a gang of thirty men, all under the direction and control of Fitzgerald who was their foreman. Fitzgerald and his gang of men were at work raising and ballasting the main track. A gravel train composed of some thirty loaded cars arrived at the place where the men were at work in the afternoon, and it became their duty to unload the same. This was accomplished by the use of a plow. A wire cable, the length of fifteen or sixteen cars, was attached to the plow placed on the rear car. The train was then cut in two, and the other end of the cable made fast to the rear car of the section next the engine. The engine then moved forward drawing the plow over the stationary cars. This done, the engine alone was used to draw the plow over the first section.
The plow removed the bulk of the gravel only and threw some of it between the cars, so that it became the^ duty of the deceased and the men of his gang to shovel the remaining gravel oft the cars, and to remove that which fell between them. On the occasion in question the plow had been drawn over the rear section composed of some fifteen cars, and the' deceased and others were on these cars shoveling off the remaining gravel. The first or unloaded section was then backed up and coupled to the second or rear section. It then became the duty of the conductor to take his entire train of cars to the Montserrat siding so as to clear the main track for other trains having the right of way. The conductor gave his engineer a signal to move forward. It seems the deceased was in the act of jumping or stepping from one car to the other just as they began to move, so that the jar threw him down between the wheels.
The plaintiff’s first instruction is as follows: “If you find that at the time the train was set in motion by defendant the deceased’s attention was occupied by his work, and that no notice or warning was given him of the moving of the train prior thereto, or at the time of such moving, or that if any such notice or warning was given him it was not of such a character as to put a man of ordinary prudence and care, possessed of ordinary acute senses of hearing and seeing, in the circumstances in which deceased was placed, on his guard, and that deceased did not know that the train was about to be moved, and that the setting of said train in motion by defendant was the direct cause of the injury to deceased, and that his death was the result of such injuries then your verdict should be for the plaintiff.”
1. The defendant seeks to be relieved from liability in this case on the ground that Miller lost his life by. the negligence of a fellow-servant, thus invoking the rule that the defendant is not liable to one servant for the negligence of a fellow-servant. The case made by the evidence stands on other and different grounds
There is no doubt but a foreman or other representative of the master may occupy a dual position; that is to say, he may at the same time be a fellow-servant and an agent or representative of the master. There are certain duties which are personal to the master, and'for the non-performance of which he is liable to his servants. These duties may be delegated to a foreman or even to a servant, and the master is still liable for their non-performance. Again, cases often arise where the master becomes liable by reason of the fact that he undertakes by himself or through a representative to do certain things which might have been left to the servant to perform. Thus, where the master provides suitable materials for a staging and intrusts the duty of erecting the structure to the workmen as a part of the work which they undertake to perform, he is not liable for injuries resulting to one of them from the falling of the staging; but, if the master undertakes to furnish the stage, he must use
It is unnecessary to pursue this inquiry for any of the purposes of the case in hand, for it is one of the absolute duties of the master to use ordinary care to avoid exposing the servant to extraordinary risks; and it is also the duty of the master to use ordinary care and diligence to provide the servant a safe place at •which to work. The master, by appointing a foreman or other person to superintend work, with power to direct the men under him, when and how to do it, thereby devolves upon such person the performance of those duties personal to the master. These principles of law are illustrated in some of the cases before cited, and also in the following authorities. Railroad v. Fox, 31 Kan. 586; Anderson v. Bennett, 19 Pac. Rep. 764; 1 Shearman & Redfield on Negligence [4 Ed.] sec. 205. If, therefore, the conductor had the control of the -train and of its movements, then he was a vice-principal. So, if the foreman had the control of the section gang, and the power to direct the men what to do, and when to do it, he was also a vice-principal. The conductor being a vice-principal, it became his duty to give due and timely warning of his intention to move the train. If he only gave notice of such intended movement to the foreman, then it became the duty of the latter to give the men at work on the cars notice of the intended movement. If the negligence of either of these persons caused the disaster, then defendant is liable, unless it be found that deceased was guilty of contributory negligence.
Now, there is an abundance of evidence upon which to submit this case to the jury on these princi
2. The second instruction given at the request of the plaintiff fixes the damage at the sum of $5,000, no more, no less; and of this error is assigned. If the plaintiff’s case comes under the second section of the damage act, then the instruction is right; but, if under the third section, then it is wrong, for the damages should then be in a sum not exceeding $5,000.
The second clause of the second section relates to passengers only, and, hence, need not be considered at this time. The first clause, so far as it has any application to this case, provides: “Whenever any person shall die from any injury resulting from, or occasioned by, the negligence * * * of any officer, agent, servant or employe whilst running, conducting or managing any locomotive, car or train of cars * * * the corporation, individual or individuals in whose employ any such officer, agent, servant, * * shall be at the time such injury is committed * * * shall forfeit and pay for every person * * * so dying the sum of $5,000,” etc.
The first case which came before this court was that of Schultz v. Railroad, 36 Mo. 14. There one servant was killed by the negligence of a fellow-servant in running a train, and it was held that the defendant was liable under this statute. The effect of that ruling was to make the statute abolish the defense that the servant was killed by the negligence of a fellow-servant, whilst running a locomotive or .a train of cars.' So far as Rohback v. Railroad, 43 Mo. 187, has anything to do with the question in hand, it is an approval of the Schults case.
The Schultz case was again approved in Connor v. Railroad, 59 Mo. 285, by a majority of the court. Napton, J., was of the opinion that the statute was not designed to create any new liability, but simply to extend a pre-existing responsibility to certain representatives of the injured party, in case of death. In that case, one servant lost his life by the negligence of a fellow-servant. It was conceded by Judge Napton that the company would be liable if it had been guilty of negligence, in employing an unskilful engineer, or in allowing him to turn over the engine to a fireman who was not qualified to manage it, and the damage resulted from such conduct of the engineer or fireman. It is
In Proctor v. Railroad, 64 Mo. 117, one servant was killed by the negligence of a fellow-servant in running a train, and the widow brought suit to recover the penalty of $5,000. The court, after referring to the statute, states the question to be decided in these words: “Whether, under the words ‘any person,’ in said section, a fellow-servant, whose death is occasioned by the negligence of a fellow-servant, without fault of the master, is or was intended to be included.” The question to be decided was, it will be seen, carefully stated. It was not simply whether the words “any person” included a servant, whose death was occasioned by the negligence of a fellow-servant, but, whether the death was so occasioned without fault of the master. The court first refers to the rule of law which exempts the master from liability where one servant is injured by the negligence of a fellow-servant, and the conclusion is then reached that it was not the design of the statute to abolish that rule, even as to cases mentioned in the first clause of the section, thus, in terms, approving the views previously expressed by Judge Napton. íhe construction given to the statute by the Proctor case is still the rule of this court. There is not a thing in that case, or in the prior cases, which gives any countenance to thelproposition that, in case of the death of an employe, the action must always be under the third section.
The Proctor case refutes any such a claim; for it proceeds upon the principle that the second and third sections were not intended to create an entirely new liability, but were designed to continue or transmit the
Elliott v. Railroad, 67 Mo. 272, was a case where an employe was killed in consequence of the use of defective machinery. The case did not come under the first clause of the second section, nor did it come under the second, for the second clause relates to passengers only; hence, it was properly held that the case came under the third section. That case is, therefore, in perfect accord with what we have said. An observation there made, to the effect that, under the Proctor case, no action can be maintained by an employe, is inaccurate and misleading, for we have seen the Proctor case does not go to that extent. A defective track was also the ground of action in Flynn v. Railroad, 78 Mo. 195; and a defective car constituted the basis of action in Parsons v. Railroad, 94 Mo. 286; and in Holmes v. Railroad, 69 Mo. 536, the employe was killed by the use of a defective car. These cases are, therefore, also in line with what we have said. It may be that the inaccurate expression used in the Elliott case has lead
"Where, therefore, the representatives of a deceased employe are entitled to recover, the damages are fixed at $5,000, if the injury, resulting in death, was occasioned by negligence in running, conducting or managing any locomotive, car or train of cars.
For the errors in the plaintiff’s first instruction the judgment must be, and is, reversed, and the causéis remanded.