112 Mo. 86 | Mo. | 1892
Lead Opinion
The plaintiff brought this suit as the widow of Johnson Relyea to recover damages becaqse of the death of her husband, who received injuries while in the employ of the defendant, and from which injuries he died.
In support of this ruling, it is insisted that plaintiff’s husband received the injuries which caused his-death by reason of the negligence of a fellow-servant, and for this reason the defendant is not liable.
The evidence produced by the plaintiff discloses the following facts: At the time of the accident, that' part of the plaintiff’s road extending from Thayer in a northwest direction for a distance of one hundred and thirty-eight miles to Springfield constituted a division. Two through freight trains, known as section 1 and section 2 of number 54, left Thayer for Springfield at two or three o’clock in the morning. Each of these trains had a conductor and two brakemen besides an engineer and fireman. They were followed by local freight train number 52, which had in charge of it a. conductor, three brakemen, an engineer and a fireman. The plaintiff’s husband was fireman on the engine of this train 52, which was the last of the three to leaveThayer. The distance from Thayer to a station called Burnham is forty-one miles, and it is four miles from there to the next station, called Willow Springs. From Burnham to the latter station there is a down grade for about half the way, and then an up grade to the-switch at Willow Springs. Section 2 of train number-54 was in the rear of section 1, and had fourteen or fifteen cars when it reached Burnham. It took on four-more cars at that place. When it reached Willow Springs the conductor concluded to drop four cars on the switch, because the train was too heavy to haul over the up grade from there to Sterling, the next station; and to that end the engine and four forward cars were uncoupled, leaving the fourteen cars standing on the main track. These fourteen cars ran back of’
Frank Shea was the conductor, Austin the head and Short the hind brakeman on section 2 of train 54. The plaintiff called Shea and Austin as witnesses, and they are the only witnesses who have any knowledge of what occurred at Willow Springs. Shea, the conductor, says when he reached Willow Springs with his train he directed Short, the rear brakeman, to cut out four cars; that Short went to assist the engineer in setting them in on the sidetrack, and that it was Short’s duty to see that the hind end of the train was secured with the brakes.
From Austin’s testimony it appears section 1 of train 54 was at Willow Springs when section 2 arrived. He and his conductor Shea had a conversation at that place on the station platform, in which Shea told him to go on to Sterling, the next station, with section 1, and there notify train number 3, coming from the other direction. This order was given to avoid a collision between number 3 and section 2. Austin got on the caboose of section 1, and that train started up and then stopped. It seems the engineer of section 1 refused to take the chances of reaching the next ■station in time to pass number 3. Austin then went back to the head of his train, and met Shea and Short, when Shea said, “Go after the hind end; they have run back.” He and Short with the engineer and the four cars went back after the escaping fourteen cars. These cars ran back because the brakes were not set. It was still very dark when all these things took place .at Willow Springs.
From the foregoing statement of the facts it is
These cases reject the rule of exemption as it is-often broadly stated, though less frequently applied, that all are coservants who are engaged by the same-master in carrying on some general enterprise, no-matter how different and disconnected the work may be. They assert the more reasonable and just rule, that they are coservants who are so related and associated in their work that they can observe and have an influence over each other’s conduct and report, delinquencies to a common correcting power; and they are not coservants who are engaged in different and distinct departments of work. They show that track walkers and track repairers and persons operating a. stone crusher are not fellow-servants with those engaged in operating trains.
Now in this case each servant was under the immediate command of his own conductor, it is true; but-that fact does not constitute a decisive or controlling circumstance. Many cases may be instanced where different gangs of men, each gang under the orders of its own foreman, are clearly coservants, within the rule of exemption. It does appear in this.case that train 52 left Thayer and pursued its trip under the orders of the train dispatcher; and it is fair to presume that the
This case is on its unquestioned facts unlike those above mentioned. It is more like Schaub v. Railroad, 106 Mo. 74. In that case a brakeman was injured by-cars standing on a sidetrack. Says the court: “There was no evidence of any negligence in the case of anyone, except the trainmen who put the cars on the switch, and for that negligence the company was not liable to the deceased.” That case was, in its facts, different from those before mentioned where the relation of fellow-servant was held not to exist, and in the opinion of the writer it is not in conflict with them in the conclusion reached on this subject.
The first inquiry is, was there evidence tending to show negligence on his part? If not, that disposes of this whole contention. If Conductor Shea was negligent, it was because he knew, or in the discharge of his duties ought to have known, that the fourteen cars had
We then come to the further inquiry whether it was his duty to know whether the other cars had been secured. The proof shows, and there is ni> evidence to the contrary, that it was Short’s duty, as hind brakeman, to look out for his end of the train. It was necessary and proper for the conductor to go to the station, and to give orders as to the movement of the train, but it is out of all reason to say that he- was in duty bound to follow up each brakeman and see how each movement was executed. There is in our opinion no •evidence to show, or tending to show, that the conductor was guilty of any negligence whatever.
It is sufficient to say in conclusion that, from the' evidence produced by the plaintiff;, this accident occurred solely by reason of the negligence of the brakeman. The court, therefore, did not err in sustaining the demurrer to the evidence, and the judgment is affirmed.
Dissenting Opinion
(dissenting). — I find myself unable to concur in the foregoing opinion.
The party killed and the negligent brakeman were not, in my judgment, fellow-servants within the rule that exempts the master from liability for the negligence of a coservant.
I think the principle announced in Sullivan v. Railroad, 97 Mo. 113; Dixon v. Railroad, 109 Mo. 413; and Parker v. Railroad, 109 Mo. 362, should be applied to and control the decision in this-case. The rule, I concede, was not in those cases, formulated in the same language by the four concurring judges, but the principle upon which the rule was made to rest was announced by all substantially alike.
Judge Barclay in the Dixon case, in holding a railroad company liable for the death of a workman engaged in its quarry, caused by the negligence of one of its engineers, said: ‘ ‘The master had seen fit to place the deceased quarryman and the trainmen under supervision and management totally apart from each other. They %oere not acting under the same immediate direction. Railroad v. Mackey (1887), 127 U. S. 208. Each looked to a different individual, as the master’s representative for directions in his work, and had no practical connection with the superior who guided and supervised the acts and conduct of the other.”
Judge Black in the Parker case, in holding the company liable for the death of a trackman caused by the negligence of the engineer, stated the rule with great terseness and precision thus: “Guided by the real reason for the rule, it seems to us it should be applied, and applied only, in those eases where the
The rule as stated by myself in the Parker case, and in which Judge Brace concurred, is this: “The trainmen and section men were not fellow-servants; not because they performed different work, but because they performed distinct parts of the same work, in different groups, under different foremen. They looked to different individuals for directions in their work. They had no common, immediate superior to whom they could look or appeal, if need be, for protection. They had no control of each other. They were not consociated in the performance of their duties.”
In these extracts, we find a difference in the statement, but notin the'principle and grounds of the rule. A distinction is attempted to be made between laborers in different departments of service, but I think the distinction is wholly an artificial one, and cannot be upheld without abandoning all the grounds on which the rule is made to rest. If those are not fellow-servants, who are not “so associated and related in their work that they can observe and have an influence over each other's conduct, and can report delinquencies to a common correcting power or head,” or who do not act “under the same immediate control,” why should the liability or non-liability depend on the nature of the
I prefer to rest the rule on the grounds, fairly deducible in my opinion from the cases above named, i. e., upon such association of employes in the master’s work, under a common, immediate superior to whom they can look for protection, as that they can observe the conduct of each other, and mutually encourage and influence each other in the careful and faithful performance of that work.
Thus far I feel justified in going, from a consideration of the decisions and grounds of decisions in the Sullivan, Dixon and Parker cases, alone; but my posi
Let us apply the rule, thus announced, to the facts, of the case in hand. First. Relyea and the rear brakeman on the forward train were not eonsociated in their work, so that they could observe each other’s acts and have an influence over each other’s conduct. They were miles apart. Second. They did not work under a. common, immediate superior. They were under the directions and control of independent conductors, not, it is true, independent of their common superior, but. simply independent of each other. And, conceding the propriety of reporting delinquencies, they had no-opportunity of reporting the misconduct of each other, nor did they have a common, immediate superior, to whom they could have reported had they so desired, each being under the supervision and control of an independent and separate conductor. Hence, every ground on which the rule, announced by a majority of this court in the Sullivan, Dixon and Parker cases, is-made to rest is here wanting, and yet the defendant, company is exempted from liability on the ground, that the rule applies to coservants engaged in the same line or kind of service, without regard to consociation in their work or common supervision mid control. It-seems to be assumed, though not expressly, in the-opinion of the court, that liability would have attached in this case, if the death of Relyea had been caused by the negligence of the conductor of the forward train..
That the latter proposition is not the law, I think will be conceded without ai'gument or citation of authority, and the correctness of the former seems in the opinion to be denied, at least by implication, and yet defendant is exempted from liability, apparently, because the injury resulted from the negligence of one servant, holding the same rank in one crew, that the deceased held in the other, both being engaged in the same line or kind of service, i. e., both being engaged in the operation of trains.
But according to the adjudged cases non-liability cannot be predicated upon the rank alone of the offend
Following, therefore, the rule and the true reason of the rule as heretofore stated by four of the seven judges of this court, I have no hesitancy in saying that • the offending and injured servants, in this case, were not fellow-servants and the judgment ought to be reversed and the cause remanded for new trial.