85 Mo. 588 | Mo. | 1885
This is an action to recover damages for an injury alleged by plaintiff to have been sustained by him while in the employ of defendant as a car repairer. The .cause of action stated in the petition is, that at Stan-berry, a station on defendant’s road, defendant kept a car shop, and had in its employ a foreman of car repairs, who had sole charge and control of hands employed to repair cars. That on the nineteenth day of October, 1881, and
The answer denied every allegation in the petition, and for a further defence alleged, that at and long prior to the date of plaintiff’s injury, the- defendant had adopted a rule, requiring all car repairers, when engaged in repairing cars, to set out red flags on each side of the place where they were at work, as signals of warning to-approaching trains, and that Kestler, the foreman, and the defendant and O’ Connor, who was at that time engaged with plaintiff in repairing the car in question, had notice of the rule, but that defendant and Kestler on that
It is virtually conceded by plaintiff that no red flags were set out, as required by the rule of the company, but there was evidence tending'to prove that plaintiff had no knowledge that such a rule had been adopted. There was evidence, however, tending to prove the facts alleged in plaintiff’s petition, and the question in the cause which presents the most difficulty, is whether plaintiff and the foreman of car repairs were fellow servants. If they were not, and the foreman is to be'regarded as the alter ego of the company in the transaction which is the basis of this action, plaintiff was absolved from the duty of observing said rule by the promise of the foreman to use proper precautions for his safety. Appellant’s counsel say that the rule by which to determine who are fellow servants is well stated by Mr, Wood in his work on Master and Servant, at page 860, as follows: “Whenever the master delegates to another the performance of a duty to his servants, which the master has impliedly contracted to perform in person, or which rests upon him as an absolute duty, he is liable for the manner in which that duty is performed by the middle man whom he has selected as his agent, and to the extent of the discharge of those duties by the middle man, he stands in the place of the master, but as to dll other matters he is a mere co-servant. ” The cases on this subject, reported in the books, are numerous and contradictory, and it would be an endless task to review, and utterly futile to attempt to reconcile, them.
Whether the foreman, in this case had or had not authority to employ and discharge car repairers, by no
It is true the company was under no obligation to the
In some of the cases and text books the rule is an- ■ nounced that, where a master has. committed the entire •control and management of his business to another, re- ' serving no discretion or control to himself, the person to
Buck, the general superintendent of car repairs, was-not a fellow servant of plaintiff, and could not have been so regarded if he, instead of Kestler, had been present and given the order, and made the alleged promise to-protect plaintiff in obeying that order. And if, by an • thority of the company, Kestler was placed there to do-what fell in the line of Buck’s duty, did he not, in respect to that matter, stand in the same relation to the company as Buck himself'? And if Buck had personally done what it is alleged Kestler did, could the company have successfully defended the action on the ground that Buck and plaintiff were fellow servants? We recognize the principle that one may act in the dual character of a
The defendant’s refused instructions asserted the following general propositions, .viz. That although plaintiff and Kestler were not fellow servants, Kestler was not .authorized by the company to make the promise alleged to protect plaintiff while under the car, and that notwithstanding such a promise, yet plaintiff could not recover if he failed to set out the red flag, as required by the rule, ■or to set some one to watch for the approach of engines and trains. It being conceded, as it must be, that the ■company owed a duty to the men under the car to provide for their safety, can it be that the foreman had no authority in an emergency to use any other means than those adopted by the company % That the red flags, and nothing but the red flags, .was the means he was to employ % If for any reason that would clearly, in a given ■case, have been insufficient as a warning, can itbe possible that the foreman would be restricted to the use of the red flags % Or, if, in such case, he had had.the red flag set up, and one of the men was injured in consequence of its insufficiency to give the warning, that the company would not be liable to the injured party % Has it discharged its duty by simply adopting a means of protection ordinvarily sufficient, when the person in charge of the work knows that in the particular case it is not a sufficient
It being the duty of the company to provide for the safety of men while engaged in its dangerous service, if it, delegates such authority as to the employment of men,, and their control and management to an agent, will the law, in the absence of an express stipulation to that effect, declare that such agent is under no obligation, and has-no power, as the representative of the company, to provide means for the safety of servants whom he sends into a place of danger to work. If so, the duty of the company to provide such security may be easily evaded by having no one on hand to perform it. And by simply adopting reasonable rules, the observance of which will ordinarily afford protection, although in a given instance-the observance of such regulations would afford no protection whatever, and the person representing the company in the direction of the work and the control of the-hands, knew the fact. Such abdication of duty can certainly find no support, either in reason or authority.. The judgment is affirmed.