106 Mo. App. 129 | Mo. Ct. App. | 1904
-This plaintiff was hurt while be was employed by tbe defendant as conductor on one of its trolley cars. He alleges in bis petition, and bis evidence tends to prove, that tbe injury be received was caused by tbe negligence of a motorneer operating another trolley ear; not by any negligence of tbe defendant company in tbe discharge of duties wbicb can not be delegated to employees; therefore, tbe decisive question in tbe case is whether tbe plaintiff and said motorneer were fellow-servants. If they were, the defendant is not liable; for tbe Supreme Court has decided' that tbe fel
The trolley car on which plaintiff was conductor July 7, 1900, became disabled, and in accordance with a rule of the company was started to the sheds on G-eyer avenue to be repaired. It had proceeded westwardly on said avenue to a point opposite the company’s power house, and just west of the west end of a track connecting the north and south tracks, called a “cross-over,” used to switch cars from one track to the other. Plaintiff’s car was on the north track, as it was proceeding westward. After it had reached the west end of the “cross-over,” plaintiff changed his trolley pole from the east to the west end of the car so as to run over the connecting track into the power house or shed. Having adjusted the trolley pole, he tried to open the gate on the south side of the west vestibule of his car in order to get on the platform, and while doing so, the motorneer of the California avenue line carelessly ran a car against him, inflicting the injury complained of.
The decisions in this State relating to when two or more persons employed by a common master are fellow-servants in such sense that a master is not liable for injuries inflicted on one by the negligence of another, are far from harmonious as to the criterion of coservice, and we shall not attempt to formulate a principle of universal application in determining the question.
In Schaub v. Railroad, 106 Mo. 74, a brakeman on a freight train was knocked from the side-ladder of one of the cars by some detached cars that had been left on a side track too close to clear a man on said side-ladder. At least, that was the theory on which recovery was sought. It was held that some agent or employee of the railway company had negligently placed the detached cars in their position on the switch; but that the railway company was not liable for the consequences, because the brakeman who was killed was a fellow-seryant of the employee who had set the cars on the side track.
It appears clear to our minds, in view of the foregoing precedents, that the plaintiff and the motorneer whose negligence caused his injury, were fellow-servants. The judgment is, therefore, reversed.