106 Mo. App. 61 | Mo. Ct. App. | 1904
The plaintiff is an employee of defendant and was injured by the negligence of a fellow-servant. He brought this action for the injury thus negligently inflicted and prevailed in the trial court.
“Every corporation operating a railway shall be liable for all damages sustained by any person, including employees of such corporation, in consequence of the neglect of the agents, or by any mismanagement of the engineers or other employees thereof, and in consequence of the willful wrongs, whether of commission or omission, of such agents, engineers or other employees, when such wrongs áre in any manner connected with the use and operation of any railway on or about which they shall be employed. ’ ’
Plaintiff’s injury came about while he and others were on one of defendant’s “work trains” which was used in conveying material for new bridges, and carrying old material away. Plaintiff and his fellow-workmen were engaged in loading onto a car some large iron beams weighing about twelve hundred pounds which were part of an old bridge and were to be moved to some other place on the line of the road. While thus engaged, in consequence of.'the negligence of some of his fellow-workmen, his hand was caught and his fingers so mashed and injured that two of them had to be amputated. The fellow-servants whose negligence caused plaintiff’s injuries were a part of the.“bridge gang” and were assisting in loading the car.
As already stated, plaintiff’s right to hold defendant liable is governed by the Iowa statute, and that statute has been construed by a decision of the Supreme Court of this State which, under the Constitution of the State, we must allow to control the disposition of this case. It is decided in Callahan v. Railway, 170 Mo. 473, that to hold the master liable, under thé terms of that statute, the servant must have been injured by the
Plaintiff seeks to avoid the controlling power of this decision upon us by an earnest contention that it is merely dictum, and that it is directly opposed to what the Supreme Court of Iowa has itself said of that statute. We think counsel are mistaken in pronouncing the view of our Supreme Court as dictum. The question arose in the course of that decision, as to the construction of our own statute. The point had been made that ours was taken from that'in Iowa and that it should therefore be construed as was that of Iowa by the courts of that State. The question as to what was the construction of the statute of Iowa was thus fairly and legitimately before the court. We do not say that our court might not have decided the case without affirmatively pronouncing a construction of the Iowa statute. But it will not do to denounce everything as unauthoritative dicta which might possibly have been omitted from an opinion. It is enough that a construction of the Iowa statute was not foreign to that case, but on the contrary was, at least, apropos thereto.
The injury inflicted here does not meet the test laid down by the Supreme Court in the Callahan case and we
Though it is not necessary to say anything further-of this case, yet, we may add that leaving out of view the construction pronounced by o-ur court and taking that stated in the leading case of Akeson v. Railway, 106 Iowa, viz.: that if the injury is caused by the negligence of a coemployee in the actual movement of trains, cars, engines or machinery on the track, “or m any manner directly connected therewith, the statute applies and recovery may be had.” The court said in that case: ‘ ‘ To hold that the injury must have been caused by the actual movement of the cars, engines or machinery, to come within the protection of the statute, would be giving too narrow a construction to the words, ‘in any manner connected with the use and operation of any railway.’ ”
So, even if we.were at liberty to accept that case as giving a correct and authoritative construction -of the Iowa statute, yet we would feel that plaintiff’s case falls short of coming within the terms of that construction. It is not pretended that the negligent acts of plaintiff’s coemployees which caused his injury were committed in actual movement of the cars. Such acts then, to come within the statute, must have been in some manner directly connected with the movement of the cars. The act of loading a standing car with iron beams certainly has no direct connection with the movement of the car. The car may move as well with or without the load. Loading in no manner facilitates its being moved.
In Reddington v. Railway, 108 Iowa 96, the act of the fellow-servant whose negligence caused the injury was committed in codling the engine, an act certainly greatly closer to direct connection with the movement of engines and cars than were the acts in this case, and yet the court held that it was not within the statute.
