111 Mo. App. 613 | Mo. Ct. App. | 1905
The plaintiff and one Laughlin were section hands on defendant’s railway and were riding on a handcar on defendant’s' track. They were fellow-servants in the employ of defendant. Plaintiff brought this action charging, in effect, that his fellow-servant carelessly permitted himself to be struck by the handlebar of the car, the blow of which threw him against plaintiff with such force as to knock him (plaintiff) off the car, wherehy he was injured. The trial court sustained a demurrer to the evidence given in plaintiff’s behalf and he has brought the case here.
The evidence controlling the case is brief. It appears that plaintiff and fivq or six others, including the foreman, were riding on a handcar which was propelled by the men operating the two- handlebars. The plaintiff and Laughlin worked one of these bars; others, the other bar; while others merely stood on the car. They had reached the top of a considerable grade and begun to descend when they ceased to operate the bars and let the car run down the grade by force of gravity, plaintiff and Laughlin permitting one hand to rest on the bar. They were thus going with great speed, the handlebars working up and down with rapid motion, when Laughlin conceived the notion to take off his hat and put it on the
Since tbe taking, effect of what is known as our fellow-servant statute there is no doubt of defendant’s liability to tbe servant (speaking in general terms) for tbe negligence of a fellow-servant. Callahan v. Railway, 170 Mo. 473; Stubbs v. Railway, 85 Mo. App. 192. And a section band riding on a handcar is within tbe protection of tbe statute. Rice v. Railway Co., 92 Mo. App. 35. But tbe negligent act of tbe fellow-servant must have been committed, not only while employed by the master, but tbe act itself must pertain to tbe particular duties of that employment — “must .pertain to' tbe duties which tbe servant was employed to perform.” Walker v. Railway, 121 Mo. 575; Snyder v. Railway, 60 Mo; 415,419; Cousins v. Railway, 66 Mo. 572; Hartman v. Muehlebach, 64 Mo. App. 565.
Laughlin’s negligent act in taking off bis bat and stooping over tbe bar to put it on tbe floor was done while be and plaintiff were in defendant’s common employment as section men; but it did. not pertain to tbe duties of that employment. Tbe car was not moving from any effort of tbe men and there is no pretense that plaintiff or Laughlin were- engaged in propelling it. Tbe only duty either was performing was tbe simple one of standing on and remaining with tbe car. Laughlin might have concluded to put bis band in bis pocket for a chew of tobacco, or as a result of a mere personal desire or whim on bis part and tbe necessary crook of bis arm in that effort might have toppled plaintiff off tbe car. Taking off his bat and putting it on tbe car floor was as much removed from tbe performance of any duty to defendant as either of these suggestions. It was an act resulting from tbe mere notion of Laughlin that be would remove bis bat and bad no possible connection
In the Cousins case, supra, the Supreme Court gives ■ this'illustration of what we have stated, quite applicable here: “If an engineer while running a train should shoot an unoffending man upon the roadside, the injury woiild be inflicted while the engineer was engaged in serving his master, but the act causing the injury would have no connection with that service, and could not be considered as done in the course of the servant’s employment.”
The case is in no respect like that of Rice v. Railway, supra. The judgment is affirmed.