Rohback v. Pacific Railroad, 43 Mo. 187

Rohback v. Pacific Railroad

43 Mo. 187 | Mo. | 1869

Wagner, Judge,

delivered the opinion of the court.

This was an action brought by the plaintiff to recover damages for injuries received by being disabled by a train on defendant’s track. The plaintiff was at work, as a servant or employee of the road, at a place near the foot of Jefferson street, in the city of Jefferson, where the railroad track crosses a traveled public road and street. It is alleged that the engineer and conductor of a train of cars belonging to the defendant, without ringing the locomotive bell or sounding the whistle, or in any manner giving notice, carelessly and negligently ran or backed said locomotive and train of cars up to said crossing, and on and over said defendant, who was at the time at work, with his face from the train, and, in consequence of such failure to ring the bell, did not observe its approach in time to escape. The evidence seems to sustain the allegations, and, assuming them to be true, the question is whether the action is maintainable.

Upon a trial in the Circuit Court the plaintiff had judgment, which was reversed in the District Court on appeal. The case has been argued in this court for the plaintiff upon two grounds: First, that the action was authorized at common law. Second, that the statute regulating railroad companies expressly warrants it.

As to the first ground, it may be said that the prior decisions of this court are in direct opposition to it. In McDermott v. Pacific Railroad Company (30 Mo. 115) the point was sharply presented, and it was held that a servant who is injured by the negligence or misconduct of his fellow-servant can maintain no action against the master for such injury, unless the servant by whose negligence the injury is occasioned is not possessed of ordinary skill and capacity in the business intrusted to him, and *193the employment of such incompetent servant is attributable to the want of ordinary care on the part of the master. This rule of exemption was first established by Ld. Ch. Baron Abinger, in the Court of Exchequer, in Priestley v. Fowler (3 Mees & W. 1), decided in 1837. The English authorities are universal and harmonious in its support. Shortly after the case of Priestly v. Fowler, the point was decided in the same way in Murray v. The South Carolina Railway Company (1 McMullan, 385); and in 1842 the question came up in the Supreme Court of Massachusetts, in Farwell v. The Boston and Worcester Railroad corporation (4 Met. 49), and the doctrine was reasserted and enforced by the late Chief Justice Shaw, in one of the ablest and most powerful opinions ever delivered from the bench. This latter case has ever since been regarded as the leading decision on the subject.

The weight of American authority is overwhelmingly and decisively on the same side. There are a few cases which have held otherwise, but they are exceptional. In a late case in the Court of Appeals in Kentucky, the rule was denied, and damages awarded against a corporation. In Ohio, formerly, the principle was repudiated, or, to speak more correctly, greatly qualified; but in the most recent case that we have seen from that State, involving the identical point presented by the case now under consideration, it was held that where one of the trackmen was injured by the neglect of the fireman on one of the trains, an action would not lie. (Whalen v. M. R. & S. E. R.R., 8 Ohio St. 249.)

Were the question res nova, I should hesitate long before I would give to the rule an unqualified approbation. In many cases it produces the grossest injustice, and grants an immunity or exemption which shocks the moral feelings. But in view of the law being settled for many years in this State, and the great weight, respectability, and, I might add, uniformity of the authorities in the same way, I consider that we are bound to yield an assent, or at least acquiesce in the doctrine, however reluctant we may be to adopt it. The next question to be determined is, can the action be sustained by reason of any statutory provision? *194The case of Schultz v. Pacific Railroad (36 Mo. 13) is not an authority here. That case was brought, by the widow of a deceased husband, under the second section of the act for the better security of life and property. (R. C. 1855, p. 647 ; Gen. Stat. 1865, ch. 147, § 2.) There the statute gives the action in plain and unmistakable terms, and- abrogates and modifies the common law. If the present case be sustainable at all, it must derive its support from the thirty-eighth section of the statute in relation to railroad companies. (Gen. Stat. 1865, ch. 63.) That section makes it incumbent on all railroad companies to have a bell placed on each locomotive engine, to be rung at a distance of at least eighty rods from the place where the railroad shall cross any traveled public road or street, and be kept ringing until it shall have crossed such road or street. The last clause of the section declares: “ And said corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect.”

The whole question is, whether servants or employees of' the company are to be included within the designation “ any person,” according to the true sense and meaning of the act.

The section is a transcript of the New York statute, and it is there decided that the omission by a railroad company to give the signals required on the approach of a locomotive within eighty rods of a highway crossing is a breach of duty to the passengers, whose safety it imperils; and to the wayfarer, whom it exposes to mutilation and death. (Ernst v. The Hudson River R.R. Co., 35 N. Y. 9.)

After a somewhat careful examination, I have been unable to find any case where it was sought to bring a servant within its provision. It is obvious that the enactment of the law was intended primarily for the protection of the traveling public and passengers. At a public crossing or Street, frequented by travelers'and persons engaged in business, the danger of collision and accident is constant a.nd recurring, without a signal warning them of the approach of the train.

Not only is danger to be apprehended to those who may happen to be on the track, but the lives of the passengers are also jeopar*195dized. The law, in a previous part of the section, subjects the company to a penalty for omission of duty in ringing the bell; but, lest that might be deemed exclusive, it also makes it responsible in damages at the suit of any person injured. There is a strong and peculiar reason why -this precaution of giving a signal should be observed, as regards passengers and the traveling public, but it is not apparent when it comes to be applied to the servants of the road. There is nothing to show that from their business and occupation they are in greater hazard at a public crossing than at a private crossing or anywhere else on the track. That the draftsman of the law used the word “person” in the sense that it should apply to the classes above referred to, and without any intention of changing the common-law construction, can scarcely be questioned. In this view of the law we are strengthened by the different phraseology used in the second section of the act relating to damages, and on which Schultz’s case was based. That section provides that “whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness, or criminal intent of any officer, agent, servant, or employee, whilst running, conducting, or managing any locomotive, car, or train of cars, etc., it shall be responsible to the representatives of the deceased.” Both acts were passed by the same Legislature. They show clearly that the law as it existed was understood ,by that body; that in one case a modification was intended to be made, and in the other not. If it had been intended that the thirty-eighth section should change the law, so as to allow persons to sue who had been previously barred, words of similar import to those used in the damage act would have been employed. I am satisfied that this is a case of great hardship, but sympathy cannot be permitted to unsettle the law.

There was a question made in regard to a change of venue, but, from the disposition that will be made of the cause, it is unnecessary to notice it. Judgment affirmed.

The other judges concur.