Sullivan v. Missouri Pacific Railway Co.
97 Mo. 113
Mo.
1888
Check Treatment
Black, J.

The plaintiff is the widow of Patrick Sullivan ; he was killed by a passenger train on defendant’s road and she sued for and recovered five thousand dollars damages, basing her cause of action on section 2121, Revised Statutes, 1879, known as the second section of the damage act. The petition states that deceased was a track-hand, his duties being that of a track-walker over a section of the road, and it then proceeds to state : *117‘ ‘ That while so engaged on the eighth day of May, 1885, he was run upon, injured and killed by the locomotive and cars of defendant, known as the morning Lexington train, west, and resulting from or occasioned by the negligence of the officers, servants or employes of defendant, whilst running, conducting or managing said locomotive and train of cars ; that the said train was out of time and under the control and management оf one Fitzgerald, as conductor, and one O’Donnell, as engineer; all, at ornear Rock creek, in said county and state aforesaid ; on the line of defendant’s railway.”

1. The objection to the petitiоn, made by way of an objection to the introduction of any evidence, seems to ‍​​​​‌‌​​​‌​‌‌‌​​‌‌‌‌‌​‌‌​‌​​‌​‌​‌‌‌​​​​‌‌‌​‌‌​​​‍be that it does not state any specific act of negligence, and in support of this position we are cited to Gurley v. Railroad, 93 Mo. 445. The rule of that case is, that it is good and sufficient pleading to set out and describe the acts done with a reasonable degree of particularity, and then allege that they were negligently done. In this case the petition sets out circumstances as a matter of inducement, to the.unnecessary extent of stating the names of the conductor and engineer in charge of the train ; it states that Sullivan was run upon and killed by the designated train, and that his death was occasioned by the negligence of the defendant’s servants while running, conducting and managing the locomotive and train of cars. The petition is clearly within the rule of thе case before cited. It would be good as against a demurrer making this specific objection, and that being so, it is certainly good as against an objection made to the introduction of any evidence, after answer and on trial of the cause.

2. It is next insisted that the court erred in refusing to instruct the jury that upon the pleading and evidence plaintiff could not recover. The evidence shows that deceasеd had been in the employ of the defendant for about ten years. On the day in question he walked *118over Ms section of about four miles, and then back to a place where some men were loading a train оf dirt cars with a steam shovel. The dirt cars stood on a side track and the shovel was some thirty or more feet to the north of the main track. Sullivan stood upon the north end of a tie of the main track, facing the shоvel, with a wrench and a spike maul on his right shoulder. While in this position the passenger train going west came around a curve, hit and killed him. At the time, Sullivan was talking to some men, and was watching the shovel. The machinery and chains used in operating it made considerable noise, so that he evidently did not hear the coming train, nor did he see it. He could have ‍​​​​‌‌​​​‌​‌‌‌​​‌‌‌‌‌​‌‌​‌​​‌​‌​‌‌‌​​​​‌‌‌​‌‌​​​‍seen it for a distance of about two hundred^yards, most of the witnesses say, and they say the engineer could have seen him for a like distance. The train was a regular west-bound train, about ten to twenty minutes behind time, and going down grade at a rate of speed estimated from twenty to thirty-five miles per hоur. One witness, who was at work with the shovel, says he saw the train when one hundred or one hundred and fifty yards away ; that the engineer was watching the shovel, and continued to watch it until he came up to Sullivan ; that he heard no bеll, but heard a sharp whistle from the engine just as it hit Sullivan; and that no effort was made to stop the train previous to that moment.

Por the defendant, the fireman on the passenger engine testified that he saw Sullivan when abоut one hundred yards away. He says: “As soon as I saw him I rang the bell. I didn’t see him any more ; he was looking at the steam shovel, and about that time I turned the curve, and I told the engineer there was a man on the track.”

The enginеer says he saw Sullivan when about fifty yards away, that he could not see him at a greater distance from his side of the engine, because of the curve. He testified : “I was going west on train 43, and about *119a quarter of a milе this side of Rock creek there was a steam shovel working there and Mr. Sullivan was standing on the end of one tie looking at the steam shovel working as I went around the curve; I whistled at him several times, but he couldn’t take his eyes ‍​​​​‌‌​​​‌​‌‌‌​​‌‌‌‌‌​‌‌​‌​​‌​‌​‌‌‌​​​​‌‌‌​‌‌​​​‍off, it seems, the steam shovel; he just seemed paralyzed looking at the steam shovel; I could not attract his attention with the whistle, and when I saw him still there I set the air brakes ; I did all I could to attract his attention, but I сouldn’t do it.”

Sullivan was not a wrong-doer because on the track. He was where he had a right to be ; and while there is evidence tending to show that he was guilty of negligence, there is evidence tending to show that his life сould have been saved by the use of ordinary care on the part of the engineer and fireman, and that they failed to exercise that care. Indeed, although the fireman and engineer saw Sullivan on the track, and saw that his attention was attracted to the steam shovel, still there is evidence that no signal was given until the instant the engine struck him. The fireman and engineer knew that a gang of men were working at the point wherе the deceased was killed, and it was their duty to keep careful watch, and especially so in view of the curve which prevented an approaching train from being seen until within about two hundred or two hundred and fifty yards of the place of the accident. The court committed no error in refusing to give the instruction in question.

3. The point made that the deceased was a fellow-servant with those in charge of the train, and for that reason the plaintiff cannot recover, cannot be sustained. We have held that a car-repairer at a station and a train-man are not fellow-servants, within the meaning of the rule that exеmpts the company from liability to a servant for injury occasioned by the negligence of another servant (Condon v. Railroad, 78 Mo. 567); *120nor are section foremen and switchmen fellow-servants. Hall v. Railroad, 74 Mo. 298. The rule of exemption is based upon the assumption that the servants are engaged in a common employment. While there is much diversity of opinion as to what will, and what will not, constitute a common em ployment, this section-man and the servants in charge of the passenger train were engaged in different dеpartments of the general ‍​​​​‌‌​​​‌​‌‌‌​​‌‌‌‌‌​‌‌​‌​​‌​‌​‌‌‌​​​​‌‌‌​‌‌​​​‍business in which defendant was engaged, and were not fellow-servants. Cases are cited which go further and hold that servants are not fellow-servants where the relation is much more intimate than that of the deceased and persons in charge of the train in question; but we coniine, our present ruling to the facts of the case before us.

4. The further point is made that this being an action by the reprеsentative of an employe, the court erred in fixing the damages at five thousand dollars. In other words, the contention is that the case is not within the second section of the damage act. The case оf Proctor v. Railroad, 64 Mo. 112, decides, and decides only, that the words “any person” do not include the case of a servant whose death is occasioned by the negligence of a fellow-servant. Considering the second, third, and fourth sеctions together, it was held that it was not the object, purpose or intent of the legislature to destroy or interfere with the rule that prohibits a servant from sustaining an action against the master for the negligence of a fellow-servant, the master himself not being in fault. Says the court, the face of the section “is at war with any other idea than that the right to sue was intended to be a transmitted right, and not an original right.” That case has been followed to the present time, and we still adhere to the ruling there made. But if we are right in the conclusion that Sullivan was not' a fellow-servant with the servants of the defendant, running the train, which ran over and killed him, then the Proctor case is without any application *121here. The statute reads: “Whenever any person shall die from any injury resulting from, or occasioned by the negligence * * * of any servant or employe whilst running, conducting or managing any locomotive, car or train of cars,” etc., and a subsequent clause goes on to say: “And when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad or * * * machinery thereof, ’ ’ etc. It will bе seen that, in case of death resulting from defective road or machinery, this section extends to passengers only, and not to servánts, though they may have a cause of section under the ‍​​​​‌‌​​​‌​‌‌‌​​‌‌‌‌‌​‌‌​‌​​‌​‌​‌‌‌​​​​‌‌‌​‌‌​​​‍third section, but not evеn under that section, if the death be the result of the negligence of a fellow-servant. But the first clause of the second section is not limited to passengers. Under that clause, if the person die from the negligenсe of the servant, whilst running any locomotive, car or train of cars, then his representatives will be entitled to recover five thousand dollars damages ; provided the person would have had a cause of action had death not followed. Sullivan, therefore, not being a fellow-servant with the train-men, the plaintiff’s cause of action comes within the said second section of the damage act.

5. The objeсtion to the reading of the depositions of Nicholson, Gillett and Brittainstein is that there is nothing to show that the witnesses were not within the jurisdiction of the court. The statute provides when the deposition maybe read, and in sоme instances it is not necessary that the witness should reside out of the county where the trial is had, or be more than forty miles from the place of trial. The statute also declares that the facts which will authorize the reading of a deposition may be established by the testimony of the deposing witness or the certificate of the officer taking the same. The certificate of the officer taking these depositions is not preserved in the record ; and this *122being so, we must indulge in the presumption that the certificate disclosed a proper case for reading the depositions. Prom the record, we cannot tell where or before whom the depositions were taken. The whole depositions, including the certificate of the offi cer, must be preserved in the record in order to enable us to review such an objection as that made in the present case.

The judgment is affirmed.

All concur, Barclay, J., not sitting.