Orendorff v. Terminal Railroad, 116 Mo. App. 348

116 Mo. App. 348 | Mo. Ct. App. | 1906

BLAND, P. J.

(after stating the facts)). — 1. At the close of plaintiff’s evidence and again at the close of all the evidence, defendant offered an instruction in the nature of a demurrer to the evidence. The refusal of the court to grant this instruction is assigned as error. That the plaintiff and the employees operating the engine were fellow-servants, is conceded, and plaintiff should have been nonsuited unless he was a servant engaged in Ihe operation of defendant’s railroad, within the meaning of section 2873, R. S. 1899, which provides.

“That every railroad corporation owning or operating a railroad in this State shall be lL.ble for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof: Provided, that it may be shown in defense that the person injured was guilty of negligence contributing as a proximate cause to produce the injury.”

The above section has been twice before the Supreme Court for construction; in Callahan v. Railroad, 170 Mo. 473, 71 S. W. 208 and Sams v. Railroad, 174 Mo 53, 73 S. W. 686; and once before the Kansas City Court of Appeals in Stubbs v. Railway, 85 Mo. App. 192. In the Callahan case, the evidence showed that Callahan was a section hand engaged in repairing track and that he was injured by the negligence of his fellow section hands. The court held that he could recover. Marshall, J., after reviewing the cases from other jurisdictions construing similar statutes, at pages 495-6, said:

“It thus appears that everywhere except in Iowa and Minnesota, the adjudications agree that it is not essential that the injury should have been inflicted by reason of the negligence of a fellow-servant while actually engaged in running a car, but that the injured employee may recover, if injured by the negligence of a fellow-servant while they are engaged in doing any work for the railroad which was directly necessary for the operation of the railroad, and that even so sweeping a statute as that of Indiana was held by the Supreme Court of the United States, not to- be repugnant to or violative of the Federal Constitution.

Under the language of our statute it is necessary for the injured employee to show that he was injured ‘while engaged in the work of operating such railroad.’ Construed either by its own terms or in the light of the cases cited from other jurisdictions, it results in holding that the right to recover is not limited to cases where the injury is inflicted by reason of the negligence of a fellow-servant while actually moving a train or engine, but that the law embraces all cases where the injury is inflicted upon an employee while engaged in the work of operating a railroad, by reason of the negligence of any fellow-servant- who is likewise engaged in the work of operating a railroad, and that the term ‘operating such railroad’ includes all-work that is directly necessary for running trains over a track, and that it includes section hands who are engaged in working upon, repairing or putting in shape the track, road bed, bridges, etc., over which the trains must run.”

In the Sams case, a majority of the court held that street- railroads were not included in the section (they have since been included by a legislative amendment of the section. Laws, 1905, p. 138). In the Stubhs case, it was held the statute embraced members of the section gang engaged in removing old rails from a track and putting in new ones.

In the case of Williams v. Railway, 106 Mo. App. 61, 79 S. W. 1167, cited in briefs of counsel, the plaintiff was injured while at work for a railroad company in the State of Iowa and hence the case was controlled by the Iowa statute, and the construction given it by the Supreme Court of that State, to the effect that only such servants as are engaged in running trains are embraced in the statute, was followed. The case has no bearing-on the one in hand.

Our statute by its very terms embraces all agents and servants of a railroad corporation engaged in the work of operating such railroad. In the operation of a railroad it is as necessary to load and unload freight cars as it is to- hitch an engine to them and haul themi back and forth over the road, and the work is as directly connected with the operation of the road as is any other service a railroad company is required by law to perform. See Railroad v. Koehler, 37 Kan. 463; Railroad v. Haley, 25 Kan. 35, and Railroad v. Pontius, 157 U. S. 209, in all of which it was held that a servant engaged in unloading a car was embraced in the Kansas Fellow-Servant Damage Act, and that the labor performed was directly connected with the operation of the road. We think there is no doubt that the services plaintiff was performing bi’ings him within the protection of the statute, and conclude that the demurrer to the evidence was properly overruled.

2. Defendant insists that the damages assessed by the jury are excessive and in his argument refers to the small amount of wages (less than three hundred dollars) plaintiff lost on account of the injury and the insignificant sum he paid out in and about his cure. This argument leaves out of view that portion of plaintiff’s evidence which shows that the broken bone incapacitates plaintiff from climbing a ladder or from walking rapidly, and that the injury, being SO' near the ankle joint, causes and will continue to cause him more or less pain at times. This evidence shows a permanent impairment of the free and full use of the left leg and a permanent source of occasional pain. In our opinion, instead of being excessive, fifteen hundred dollars is a very conservative, in fact, a barely adequate compensation for such an injury.

The judgment is affirmed.

All concur.