Missouri Pacific Railway Company v. Mackey

In 1882, the defendant below, the Missouri Pacific Railway Company, mining stocks for and on account of this defendant, the laws of Kansas, operated lines of railway way in the latter state. It also had control of two track-yards adjacent to the city of Atchison, designated respectively as the upper and lower yard, and it used two switch-engines in moving cars from one yard to the other. On the 11th of February of that year the plaintiff was in the service of the company as a fireman on one of these engines employed in transferring cars from the point to another in the upper yard, when it was run into by the other engine, owing to the negligence of the engineer of the latter. By the collision the right foot and leg of the plaintiff were so crushed as to necessitate amputation. For the damages thus sustained the present action was brought in the district court of the state. On the trial the defendant requested the court to instruct the jury that if they found from the evidence that the plaintiff was injured through the carelessness of a fellow-servant he could not recover; which instruction was refused, and the defendant excepted. The court charged the jury § follows: 'At the common law a master or employe could not be held liable for an injury sustained by one servant by reason of the mere negligence of a fellow-servant engaged in the same common employment, the negligence of the fellow-servant not being deemed in such case the negligence of the master, and such was the law of this state up to 1874, but at that time this rule of the common law was abrogated, so far as it related to railroad companies and their employes in this state, by a statute which reads as follows: 'Every railroad company organized or doing business in this state shall be liable for all damages done to any employe of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employes to any person sustaining such damage.' This enactment so far modifies and changes the common law that a servant or employe of a railroad company may maintain an action against such railroad company for an injury received while in the line of his employment through the negligence of a fellow-servant or employe engaged with him in the same common work of the master or employer, unless such injured servant or employe has himself been guilty of negligence or want of ordinary care which has directly contributed to produce the injury complained of.' To this charge the defendant excepted. The jury found a verdict for the plaintiff for $12,000, upon which judgment was entered. On appeal to the supreme court of the state the judgment was affirmed; and to review the latter judgment the case is brought here.

John F. Dillon and W. S. Pierce, Jr., for plaintiff in error.

''Thos. P. Fenlon and John C. Tomlinson'', for defendants in error.

FIELD, J.