source: Caselaw Access Project

author: LAMM, C. J.

license: Public Domain

text:
    JOHN L. WILLIAMS v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
    In Banc,
    April 2, 1914.
    1. APPELLATE PRACTICE: Demurrer to Evidence. Where defendant’s only contention on appeal is that plaintiff did not make out a case on the facts for the j ury, the soundness of that position must he measured by the stiff general rule that on demurrer a defendant’s testimony, where contradicted, is taken as false, and a plaintiff’s (where not self-evidently perjured or opposed to the physical facts) is taken as true. Contradictions between witnesses or self-contradictions, together with the credibility of the witnesses and the weight due their testimony, are all for the jury, not the court. The court must allow to a plaintiff’s case on defendant’s demurrer the benefit of every reasonable inference of fact arising on all the proof.
    2. -: -: Admission. The party demurring admits the truth of the testimony to which he demurs, and also those conclusions of fact which a jury may fairly draw from that testimony. Forced and violent inferences he does not admit, but the testimony is taken most strongly against him, and such conclusions as a jury might justifiably draw, the court on appeal ought to draw.'
    3. NEGLIGENCE: Responsibility. It is not the present law that every one else is responsible for protecting one from injury except that one himself.

      4. -: Custom. When a railroad employee undertakes tg justify himself under a custom followed in ■ running a train, his acts must he within the custom.
    5. - — : Contributory Negligence. The doctrine of contributory negligence is still the law of this State, and can be ' exploded only by the lawmaker.
    6. -: -: Jumping Ahead of Moving Engine Without a Light. An experienced brakeman, who, without any precaution or any visible concern for his own safety, springs of a dark night from the pilot of an engine attached to a moving train, intending the train to follow him as he runs several' hundred feet ahead to turn a switch and sidetrack the train without its stopping (which is customary at the place), and without a light to see by, since his light has lately gone out, and without taking time to relight it or consult the engineer about stopping the train, but taking the chances of a slip, a misstep, a stumble, a fall, the most imminent danger of the most unpreventable injuries, and does fall and is run over by the train, is guilty of such contributory negligence as bars recovery for his injuries.
    7. -: -: -: Demurrer to Evidence. Plaintiff was an experienced brakeman, on an extra freight train north-bound which was required by the rules to sidetrack at a station to let a south-bound superior train pass on the main track. It had become customary as the train approached this station, to slow down and for the brakeman to jump from the train while it was still in motion, and run ahead and throw the switch, so the train could enter the sidetrack without stopping. That was done because the track was slightly up-grade, and if a heavy train stopped sometimes in starting again a drawhead to a ear would be pulled out, causing loss of time, making necessary the flagging of the superior train which ran on schedule time, and the rules required a clearance within five minutes. The time was a very dark July night. Plaintiff was supplied with two lanterns, one with a red light for signals and the other with a white light to see by, and it was a brakeman’s duty to fill, trim and look after his own lanterns. He was riding on the engine, on a seat provided on the east or fireman’s side, a proper place for him to be. As the 'train, running from twenty to twenty-five miles per hour, was a mile or so south of the station, the engineer asked plaintiff to “get the switch” for him, and something was said about their being on “short time” for the superior train, and no directions or suggestions were given plaintiff about the character of the ground or the condition of the track, or where plaintiff should run, nor did he ask for any.' Both understood that to “get the switch” meant to “run for the switch,” to throw it, so that the train need not stop in passing onto the sidetrack. One cannot see from the engine’s light the track for five or six feet immediately in front of the pilot. When the train was running three or four miles an hour and was two or three hundred feet from the switch, he left the engine cab, went out of the fireman’s window, and by means of the running board reached the pilot, where the wind blew out his white light, which it is not claimed was defective. He then returned to the cab, and without relighting or attempting to relight the lantern, or telling the engineer of the incident, or asking advice, he gave the lantern to the fireman, and with only the red light went out the same window and by the same course to the pilot. His excuse for not relighting the lantern is that he thought he did not have time. When he reached the pilot he got on the engineer’s (or west) side of it, where he was not and could not be seen by the engineer, and after riding there a little sprang out into the darkness on the east side of the center of the track, a distance of 150 feet or so from the switch. Not seeing him and the green light showing in the switch stand, indicating that the switch had not been thrown, the engineer inquired of the fireman if the plaintiff had gone ahead to get the switch, and on being told he had the train was stopped, the south-bound superior train was spied two miles up the track, and plaintiff was found sitting on the side of the track, one arm gone and both legs broken. HeW, that, whether or not there was a hole or depression in the track into which plaintiff stumbled or fell, or whether or not if there was such a hole it had existed for such a time as would bring home notice of its existence to the company, and admitting that the company knew of the custom of “getting switches” by leaping from a moving train and running for them, the plaintiff was guilty of such contributory negligence as bars a recovery for his injuries, since, being an experienced brakeman, without any precaution for his safety, without using his red lantern, without any attempt to relight the white light, without asking advice from the engineer and without reporting to him that he had lost his seeing light and thus putting it up to him to stop the train because of that misadventure, and putting himself thoughtlessly outside the pale of human aid in case of a stumble or fall or any unknown defect in the track, he leaped into the darkness in the front of an imminent danger, without a light and the likelihood of seeing.
    8. -: -: Two Dangerous Ways. The court refuses to consider whether the plaintiff is chargeable with choosing the more dangerous of two dangerous ways, to-wit, getting on the edge of the track instead of following its center. ■ •

      Appeal from. Jackson Circuit Court. — Hon. E. E. Porterfield, Judge.
    Reversed.

      Cyrus Crane and George J. Mersereau for appellant.
    (1) On the entire record plaintiff was not entitled to recover (a) Because of his own negligence; (b) Because of his assumption of the risk flowing from the manner in which he attempted to do the work. Gibbons v. Railroad, 66 Iowa, 231; Warmington v. Railroad, 46 Mo. App. 1591; Loranger v. Railroad, 104 Mich. 80; Carrier v. Railroad, 61 Kan. 407; Francis v. Railroad, 110 Mo. 387; Estes v. Railroad, 37 Kan. 715; Fennell v. Railroad, 129 N. T. 669; Thompson v. Railroad, 26 N E. (Mass.) 825; Nickerson v. Railroad, 144 Mo. App. 410; Francis v. Railroad, 127 Mo. 658. (2) The evidence does not show that defendant was guilty of any negligence entitling plaintiff to recover. There was no duty devolving upon defendant to maintain a fully ballasted track at the point of the injury. 3 Elliott on Railroads, p-. 607; 1 Labatt on Master and Servant, p. 174; 2 Bailey on Master and Servant, p. 998; Fennell v. Railroad, 129' N. T. 669; Williams v. Railroad, 119 Mo. 316; Stid v. Railroad, 236 Mo. 407.

      Guthrie, Gamble & Street and A. F. Smith for respondent.
    (1) The jury are justified in the finding that the defendant knew of and acquiesced in the method of work as pursued by the plaintiff. Crawford v. Stockyards Co., 215 Mo. 394; Barry v. Railroad, 90 Mo. 62; Finnegan v. Railroad, 244 Mo. 608. (2) Defendant was bound to know that the track surface was used in running for switches. See cases under points 1 and 13. (31) The burden of care imposed upon the defendant was not a heavy one. (4) The maintenance of the track as a footway as distinguished from a support. for the ties and the rails. Labatt on Master and Servant (1 Ed.), sec. 26-, p. 63; 26 Cyc. 1149; Wilson v. Railroad, 122 Mo. App. 667; Railroad v. Merrill, 61 Kan. 671; Railroad v. Johnson, 95 111. App. 54; Richards v. Hays, 17 App. Div. 422, 45 N. Y. Supp. 234; Dunn v. Railroad, 107 Fed. 666; Miller v. Railroad, 17 Fed. 67; Wood v. Railroad, 144 Va. 6501. (5) The defendant owed due care toward the maintenance of the track in question. Schumacher v. Breweries Co., 247 Mo. 141; Franklin v. Railroad, 37 Minn. 400; Railroad v. Sanders, 166 111. 270; Ford v. Railroad, 91 Iowa, 179; Lewis v. Railroad, 59 Mo. 495; Huhn v. Railroad, 92 Mo. 440; Hamilton v. Mining Co., 108 Mo. 364; Burdict v. Railroad, 123 Mo. 221; Hollenbeck v. Railroad, 141 Mo. 97; Railroad v. Robbins, 57 Ark. 377; Preston v. Railroad, 84 Ga. 588; Railroad v. Cozby, 174 111. 109; Railroad v. Morrissey, 177 111. 376; Railroad v. Schwartz, 58 Kan. 235; Hanna v. Railroad, 154 Mass. 529; Railroad v. Pinto, 60 Tex. 516; Railroad v. Reddicker, 67 Tex. 181; Kennedy v. Railroad, 43 Wis. 32; Southerland v. Railroad, 43 Fed. 646; Davidson v. Railroad, 44 Fed. 476; Railroad v. Mosely, 56 Fed. 1009; Railroad v. Teeter, 63 Fed. 527; Railroad v. Mugg, 132 Ind. 168; Sweat v. Railroad, 156 Mass. '284; Whitcher v. Railroad, 70 N. H. 242; Hennessey v. Railroad, 99' Wis-. 109; Railroad v. Bunty, 15-2 Ind. 591. (6) Plaintiff did not assume the risk of the master’s negligence. D'akan v. Mercantile Co., 197 Mo. 238; Obermeyer v. Chair Co., 229 Mo. 97. (7) .Plaintiff was not guilty of contributory negligence as a matter •of law in being upon the track in front of a slowly moving train. Francis v. Railroad, 127 Mo. 658-; O ’Mellia v. Railroad, 116 Mo. 205; Burdict v. Railroad, 123 Mo. 221; Hollenbeck v. Railroad, 141 Mo. 97; Preston v. Railroad, 84 Ga. 588; Railroad v. Cosby, 174 111. 109; Railroad v. Schwartz, 58 Kan. 235; Hanna v. Railroad, 154 Mass. 529; Railroad v. Pinto, 60 Tex. 516; Railroad v. Mndd, 133 Ind. 168; Hennessey v. Railroad, 99 Wis. 109. (8) Plaintiff was not guilty of contributory negligence as a matter of law in choosing the more dangerous of different ways open to him. Edington v. Railroad, 204 Mo. 6-7; Brady v. Railroad, 206 Mo. 509; Gordon v. Railroad, 222 Mo. 516; Richardson v. Railroad, 223 Mo. 325 ; George v. Railroad, 225 Mo. 403. (91) Upon the question of contributory' negligence, the long established custom of doing the work in the manner in which it was done, was entitled to strong probative consideration by the jury upon the question of whether it was negligently done. Burdict v. Railroad, 123 Mo. 222; Hollenbeck v. Railroad, 141 Mo. 97; Brady v. Railroad, 206 Mo. 509; O’Mellia v. Railroad, 115 Mo. 205; Gordon v. Railroad, 222 Mo. 516. (10) A servant cannot be charged with contributory negligence in obeying an order, even though dangerous to attempt it, unless the danger was so glaring and obvious that a prudent man would not have chanced it. Pickett v. Railroad, 156 Mo. App. 272; Stevens v. Railroad, 86 Mo. 221; Stevens v. Railroad, 96 Mo. 207; Hurlbut v. Railroad, 130 Mo. 657; Doyle v. Railroad, 1401 Mo. 1; Butts v. Construction Co., 199 Mo. 279; Buckner v. Horse & Mule Co., 221 Mo. 700. (11) This court has sustained innumerable eases where the injury was due to the master’s negligence, where the danger incurred was much more glaring and obvious to the injured employee than in the case at bar. Hamman v. Coal & Coke Co., 156 Mo. 232; Charlton v. Railroad, 200 Mo. 413; Brady v. Railroad, 206 Mo. 509; Melly v. Railroad, 215 Mo. 567; George v. Railroad, 225 Mo. 364; Corby v. Telephone Co., 231 Mo. 417; Baker v. Railroad, 148 S. W. 611; Yost v. Railroad, 149 S. W. 577. .(12) Plaintiff was not guilty of contributory negligence by reason of a violation of rule 519. Railroad v. Hunt, 73 S. E. 588. (13) Even if the terms of rule 519 could be applied to the facts at bar, plaintiff was not guilty of contributory negligence in violating it because tbe defendant had waived it. It had long since become abrogated and dead. Even a clear and specific rule 'habitually and customarily violated with the knowledge and acquiescence of the employer is deemed to be waived. Knowledge and acquiescence may be presumd from long continued violation without complaint. Barry .v. Railroad, 98 Mo. 62; Rutledge v. Railroad, 123 Mo. 133; Francis v. Railroad, 127 Mo. 658; Yost v. Railroad, 245 Mo. 249; Howard v. Railroad, 110 Mo. App. 514; Duncan v. Railroad, 86 Kan. 112; Railroad v. Hunt, 73 S. W. (Ga.) 588; Railroad v. Hamerick, 96 N. E. (Ind.) 647; ■Wichert v. Railroad, 75 S. E. (N. C.) 812: Jones v. Railroad, 149 S. W. (Tex.) 372.
   LAMM, C. J.

Plaintiff sued in the Jackson Circuit Court for $50,000 damages for personal injuries. Issue was joined on an amended petition. Presently plaintiff recovered judgment for $10,000, and defendant appealed.

A word on the pleadings will be helpful, thus: Plaintiff, a freight brakeman, complained in his petition that he was employed on one of defendant’s freight trains that was through negligence so heavily loaded, operated on such schedule and run at such speed that it was necessary for him, in the due course of his employment, to alight from the engine of his train while in motion for the purpose of throwing a switch, etc.

(Note: The question whether the train was so negligently loaded, scheduled and run as to cause plaintiff to alight from it while in motion was not submitted to the jury as a ground of liability.)

The petition next charged that defendant “negligently maintained its track, roadbed and right of Avay at and near such point” (to-wit, a way-station, Drexel) “so that the same had holes and depressions therein and ivas [sic] not reasonably safe for the use of its employees in passing over the same in the proper and required course of their employment as such;” that as the direct result of such negligent maintenance plaintiff, on getting off the train to turn a switch, fell and was injured. Negligent maintenance was the issue put to the jury as the ground of liability.

The answer was a general denial plus pleas of contributory negligence and assumption of risk.

The reply took issue on the new matter.

We allow ourselves a foreword, thus: There are record signs of a mistrial below. So, this cause, a difficult one, having been thoroughly argued twice by both sides, we believe, in Division and once in Bane,we are warned by respondent’s veteran and able counsel as follows, to-wit: “There comes a time where patience ceases to be a virtue. ’ ’ There were signs beyond that admonition, both in briefs and in oral argument by respondent,’ showing that as “patience had ceased to be a virtue” impatience had taken her place and was relied on as one. Whether impatience is ever a virtue at the bar or on the bench' of an appellate court is doubtful. The Chinese have a proverb' running: Patience and the mulberry leaf become a silk gown; and there is high authority from no less a lawyer than Paul that: tribulation worketh patience; and patience, experience; and experience, hope; and hope, etc. Observe, all that category of related virtues is handy always and nowhere more so than to bench and bar.

In a strong brief respondent took the hazardous course of not making a plain, concise, colorless statement of fact and issues. The statement submitted carried the color of comment with almost every fact —comment argumentative in character and having no legitimate place in a statement of facts and issues. A fact stained with comment is an elusive and misleading thing. Accordingly, our brother who first wrote this case in Division was driven away from respondent’s statement because of tbe mischief of its fatal mixture of fact and comment with no marked line of cleavage between the two, and, as appellant’s statement was apparently unchallenged, it was naturally accepted as a proper one. In doing so, we inadvertently fell into error and corrected it by granting .a rehearing. Counsel differ so vehemently on the facts that we will discard both statements and from original sources, to-wit, the voluminous record supplemented by facts of which we take judicial notice, we will make one of our own, thus:

There is no assignment of error here on any quesition of pleading, none on any in the admission or exclusion of testimony and none on any on the giving or refusing of instructions on either side, save one, to-wit, the refusal of an instruction prayed by defendant in the nature of a demurrer to- the evidence at the close of the whole case. Defendant demurred to the evidence at the close of plaintiff’s case,, and again at the close of the whole ca.se, and, in its motion for a new trial and in arrest and now in its briefs, it stands on the single blunt proposition, to-wit, that on the facts plaintiff made no case for the jury.

Attend to the facts.

Drexel is a way-station on defendant’s line south of Kansas City at a point hard by where Cass county corners with Bates and the line dividing Missouri from Kansas. At the times in hand the United States census shows it was a village of between four and five hundred souls. There are estimates by witnesses higher than that. The south line of the village is a public east-and-west road cutting the railroad at right angles and running about one-fourth of a mile south of the station. 'Where this dirt road crosses the railroad there is the usual cattleguard and wingfence. Something less than a hundred feet north of this cattle-guard, in the outskirts of the village, is a switch, and there a passing track commences. Save that passing track, defendant’s: road runs north and south and con:sists of one main stem. This passing track runs northwardly on the west side of the main track. This .•switchstand has a switch light, showing red when the •switch is open for the siding and green when open for the main track. This switchstand is on the west ■side of the main track, so that, to a train going north, -the switchstand is on the fireman’s side who rides on the west or left-hand side of an engine north-hound, .as was the engine in question. South of this public road defendant’s track is in a field. We will.recur in due-•course to the lay of the land at Drexel. Plaintiff, when hurt, must have been the rise of twenty-four years of .age (twenty-six at the time of the trial). He had commenced his railroading with the Santa Fe as a call hoy at the age of nineteen or twenty. He next was .a fireman on a switch engine in a Santa Fe yard. He then was a yard switchman. He then fired a road engine on the Santa Fe. For some act of “insubordination” he was discharged from that road and in April, 1907, he took service with defendant and was assigned to duty in Pittsburg, Kansas, as an extra-freight brakeman, running for four months mostly south from that ■place (a division terminal point) when, now and then, he was called to duty as an extra man, but he also ran north through Drexel to Kansas City. The trip slips kept by defendant show that prior to his injury he made twenty-two trips north from Pittsburg to Kansas City, as we understand it, during April, May, June and up to July twenty-second in 1907. There is no ■contradiction of these slips although plaintiff’s recollection varies in some instances from no trip that he ■remembers up to several he recalls. As a switchman’s .•and a brakeman’s duties overlap to some extent, we may call plaintiff an experienced brakeman. There were trains on defendant’s road called “regular” or “superior” freight trains — “carded” trains, scheduled and entitled to the right of way as against “inferior” or extra freight trains. One of its superior trains was numbered fifty-three and henee onward we will call it train number fifty-three. On a dark night, about midnight of July 22, 1907, and on schedule time, number fifty-three was south-bound loaded with merchandise and due to leave Drexel at eleven-twenty-.five p. m., passing through without stopping. At that very same time plaintiff was. approaching Drexel from the south on an extra freight of twenty-three loaded coal cars from Pittsburg, Kansas, bound for Kansas City. Plaintiff was riding on the engine on a seat provided on the fireman’s side, a proper place for him to be. His train crew consisted of a conductor, riding in the caboose, a rear brakeman, an engineer and a fireman. By the rules of the company the conductor had charge of the train, but the engineer was also charged with responsibility, and the case may proceed on the theory that the evidence shows it was proper for the head brakeman to take orders from the engineer under the circumstances presently disclosed. Coming into Drexel from the south is an up grade, what per cent we are not informed. But a train loaded to its tonnage capacity labors some in reaching the summit of the grade. There being no evidence contra we will assume plaintiff’s train was loaded to rulable capacity. The switch spoken of is not at the summit but south of it and we take it the grade vanishes somewhere between this switch and the station.

The main track is on a “little curve,” and there is some.slope from the west to the east, so that the roadbed is a bit higher above the natural level of the ground on the west than on the east. "We take it from the record that on the west there is a little cut and the usual drain. The roadbed is what might be called a dump, two, or three, or maybe four, feet high and the rise of eight feet across from shoulder to shoulder, the slope a gentle one. The ties on this dump are eight feet long and the track of the standard gauge, to-wit, four feet eight inches. We will recur to the condition of the track and sides again. If a train north-hound and loaded to its usual and rulable capacity stops on this grade it is more difficult to start than if the grade was level. Such trains do stop there and ■ start without mishap, but sometimes one happens. If the train can start with the slack out, well and good, but if it has to back against set brakes so as to get the benefit of the slack in starting, sonletimes the jerk in taking up the slack, or lost motion, pulls out a drawbar. When that happens not only delay occurs1, but there is extra and disagreeable labor for the conductor and brakeman in making a chain coupling (a chain being carried in caboose or engine for such emergency), the train is damaged and a “report” is forthcoming. Because of the possibility of these incidents, in order to save time, damage and disagreeable work to the men, a custom or “practice” had grown up among defendant’s freight brakemen in approaching the Drexel switch from the south (and elsewhere under like conditions) to “run for the switch” when their trains took siding there to clear for superior trains. We will recur to this custom later on. A run for a switch means that a head brakeman leaves the going engine, beats it to the switch and turns the latter so his train can take the siding without stopping. There was no rule of the company requiring this to be done. (Speaking of rules, we will recur to the subject-matter again.) The officer in the operating department next above the conductor was the train-master; above him, the superintendent. There was no evidence that defendant’s train-masters or superintendents had actual notice of this custom, but it had existed for eight or twelve years, evidently to the actual knowledge of conductors and engineers, and the case proceeds upon the thory that it had existed fo^ such time that notice to the company might be inferred. To enable brakemen to leave a going engine, tbe motion of the train is slowed down to somethng like a fast walk, say, three or four miles per hour. On the night in question while his train was going from twenty to twenty-five miles per hour and was a mile or so south of Dfcexel, a conversation occurred between plaintiff and Mahan, the engineer. Plaintiff does not recollect the whole of this conversation, but there is no material difference between the part of it plaintiff recollects and the corresponding part of the engineer’s testimony. The substance of it was that the engineer asked plaintiff to “get the Drexel switch” for him. There was something said about being on ‘ ‘ short time ’ for number fifty-three. Plaintiff admits he knew of the cattle-guard, but says he knew nothing of track or side condition before his injury. The engineer says he cautioned him about the cattle-guard, told him there was; a slat or so out next to the wingfence. Plaintiff does not deny what the engineer says. All sides agree that no directions or suggestions, were given to plaintiff about the character of the ground or the condition of the track, or where he should run, nor did plaintiff ask for any. He assumed to know and act on his own judgment. He says he used his own “notion” and he-furthermore admits that he knew from the time-card that his train would have to take the siding at Drexel to let fifty-three go by and that he would he expected, to “get the switch” without this conversation with the-engineer. This is. the last the engineer saw of plaintiff until after the accident. Both the engineer and. plaintiff understood that the meaning of the engineer’s, request was for plaintiff to “run for the switch,” so that the train need not stop in passing on the siding to-clear for number fifty-three. In switching in the nighttime, a brakeman carries two lanterns furnished by .the company, one a white lantern to see by and the other a red lantern to signal with. While signals are made when necessary on the fireman’s side to be by him caught and transmitted to the engineer, yet usually signals are given on the engineer’s side. One can somewhat see where to step by a red lantern by putting it close to the ground, but its normal railroad function is to signal with and not to give light to see by. It was admitted on oral argument that the brakeman fills, trims and looks after his own lanterns. A company rule seems to require that they, as well as all “tools,” be kept in safe and good condition. Plaintiff had two as above. He stayed on the fireman’s side until the train approached the Dresel switch which showed at the time a green light indicating the main line was open. He then left the fireman’s side of the engine cab, and instead of going down the gangway where steps are provided and usually used to get on and off of an engine, he took his own course and went out the fireman’s cab window and by means of the running board there and a steam-chest, he got to the pilot on the fireman’s side. A locomotive engine has a running-board on either side. The pilot of an engine is the V-shaped “cowcatcher” of common knowledge. Where it commences it is about as wide as the engine. This part may be called the heel. It sloped from both sides to an angle in front and this angle may be called the toe or nose. At the heel there is a beam extending across from side to side. Along either side of the pilot’s slope is a step a few inches wide and, say, two feet long about midway between .the heel and the toe of the pilot. One standing on this step is not in the center of the track but is, about half way between the center and the nearest rail. Plaintiff crossed on the pilot beam from the fireman’s side to the engineer’s side. Going back a little to another incident; when he first reached the pilot the wind, blew his white light out. Why, does not appear. It is not claimed the lantern was defective or that there was a gale blowing in which a lantern light would not live. He then went back on the engine on the fireman’s side and without relighting or attempting to relight the white light or telling the engineer of the incident, or asking advice, he gave the white lantern to the fireman and went out the same window and by the same course along the engine to the pilot with only the red one. His excuse for not relighting the lantern was that he thought he didn’t have time. Plaintiff’s stature was small. He calls himself “awful short.” At any rate, when he got on the engineer’s side of the.pilot, the engineer did not see him and we infer he could not see him. After riding there a little he got on the pilot step and then sprang out into the darkness on the east side of the middle of the track. As we read the record, the headlight on this engine was an oil lamp. There was testimony that the full force of the headlight strikes the track and spreads out some on either side, say, a hundred feet from an engine and some less distance than that, depending on the height of headlight. The sum of the testimony is that the headlight diffuses some light back of where its full force strikes and' all agree that there is a space on the track right in front of the engine where the headlight gives no light at all. Ordinarily, if provided with lanterns, a brakeman getting off as this one did would in his run come within the line of vision of the engineer in, say, five feet or so in front of the toe or nose of the pilot, but on this occasion plaintiff did not come within the line of vision of the engineer at all. Not seeing him, and the green switch light still showing, presently the engineer inquired of the fireman if the brakeman had gone ahead to get the switch. On being informed he had, the train was stopped with the engine at a distance variously estimated at from a half car length to a greater distance from the switch. Number fifty-three was not then in sight. Presently its headlight was seen about two miles off and the fireman flagged it and brought it to a standstill. "While the time was “short” we do not get the idea there was any danger from fifty-three, or that the extra was off of its own or on fifty-three’s time. The rules, however, required a clearance of five 'minutes.. While this was taking place, by the use of a torch, the engineer found plaintiff sitting on the east side of the track opposite the middle of the third or fourth car back of the engine,- and miserably hurt. His right arm was crushed off, both of his legs were broken (one a simple and the other a compound fracture attended in its history with surgical complications) and he was hurt in the head and had a wound, “a hole” he calls it, in his side. That he was saved from death was a miracle and it could only have been by the skin of his teeth. Details of his grave injuries, of his subsequent suffering, loss of time and permanent disablement are unimportant to any issue here; for' the very good reason that defendant concedes that if plaintiff had a case to go to the jury, his judgment was well enough in amount (and so it was).

Did plaintiff get off in the center of the track or to the east of the center? Considering the danger of a misstep or fall, this is material. Plaintiff alone tells the story, for no eye saw him. The record is confusing because it contains plaintiff’s testimony delivered on three separate occasions: once by deposition, once at a mistrial and again at the trial, and he does not always use the same words. But putting all he said at each time he spoke side by side it is clear he got off, and means to say he got off, between the center and the east rail. He says so repeatedly. He stood on a step on the east side of the pilot about over a point half way between the center and the east rail. So standing, he sprang quickly£ £ straight ahead. ’ ’ There is nothing- to show he could have reached the center if he had tried. Once or twice he used the word ££center” or “middle” in the sense of the entire space between the rails, and without giving all his testimony we copy this, as a fair summary and meaning of it:

“Q. You mean the middle of what would he the center of the track and the east rail? A.. Yes, sir. . . . You don’t exactly step in the center of track, you step over like this, right near the east rail, you don’t step right in the center.” And again: “Q. And this step you are talking about, runs about half way from the heel of the pilot to the nose? A. Yes, sir. Q. On both the engineer’s and fireman’s side? A. Yes, sir. Q. Now how can you step from that into the center of the track? A. You don’t exactly step in the center of the track, you step over like this, right near the east rail — you don’t step right in the center. Q. Then this step on both sides of the pilot is about over the rail isn’t it? A. Not all of it; one end of it about strikes the rail. Q. The outer end would be over the rail? A. Yes.”

Let us recur to what plaintiff did and how he did it. He says he sprang off straight ahead on the east side of the pilot quickly as if in a run or preparatory to a run. His first step was on an even surface. He did not know whether it was a tie or on the ground. He then claims to have taken either one, two, three or four steps. He puts it differently at different places in his testimony; some places he says “two, three or four,” then he says “somewhere along” one or two, but the sum of it all is as we have said. His evidence is to be taken with the steady and guiding fact that before he fell he did not get five feet beyond the nose of the engine and in the line of the engineer’s vision. For all practical purposes, he fell at once. When he stood on the pilot step he had not made any use of his red lantern to spy out the ground ahead between the rails or on either side of the rails. He says he knew nothing about such conditions and made no attempt to ascertain. When he fell he stepped in what he calls in some places a “hole” and elsewhere a 11 depression. ’ ’ He explains that to be a place between the ties where the ballast was ’out. His impression is that this depression was three or four inches deep. That impression arose solely from his sensation in the darkness of going down beyond the level of his first step. There was no testimony that he was able (by practice, or experience) to judge of depth in inches by such sensation in the dark. (Note: Who could? It is common knowledge that an uneospected inch or even less, in a change of level, works havoc with the equilibrium.) When he fell his impression is he tried to get up, but one of his legs failed him by reason of the fall. In what way the fall impaired the use of the leg is not described, but at once the engine was on him, and then the engine (forty-five feet long, including the tender, and either two cars and a half of say thirty-five feet each, or three cars and a half) passed over him. He remembers to have caught the brake-beam of the engine with one hand. He says at one place that he was no judge of distances even when cool and he had the use of his eye, but he thinks he was dragged eight or ten feet. His hold on the brake-beam was lost, the ashpan of the engine rolled him, “several things struck him,” he never lost consciousness, but tried to scramble out. Just when his arm was ground of£, or his legs broken, or his side was wounded so there was a hole in it, or his head injured, he does not know, and we might fairly say that in the dreadful flurry of such dilemma he would not likely know how far he was dragged or rolled or scrambled or was pushed, or just when or how he came by his injuries. The law (which is Reason) would not require that at his hands. Presently the train stopped and then he succeeded- in crawling out, a thing he had tried to do several times but could not before. We may as well at this point state that the record shows that next morning the track was examined and measurements taken by defendant that remain substantially uncontradicted. It was found from the blood on the ties and on the rails, including where the bloody marks commenced and where they ended at a pool of blood where he sat after getting from under the car, and including also the disturbances of the surface of the ground on the track and of a pile of engine ashes on the track, that he was dragged, rolled or shoved considerably the rise of one hundred feet and this agrees with the probable spot he would likely get off to make a run for the switch and beat an engine thereto moving at three or four miles per hour.

Up to this point in this statement there has been no mention of holes or depressions in the track except as derived from the sensation of plaintiff in stepping into one in the, darkness. His case in this particular was fortified, if at all, by the testimony of the fireman of train number fifty-three, a Mr. Scott. Whether Scott had a torch or saw by the light of one held by someone else is not disclosed. We infer from what he says later on that he had no light and looked no farther than under the one car. He says when his own train stopped he went to plaintiff. He found him about the middle of the third car back of the engine of the extra freight, sitting outside the rail. When asked if he examined the track near where Mr. Williams was, he replied: “Well I didn’t make no special look, or anything like that. I remember looking under the ear.” When asked what the condition of the track was to the extent he did observe it, he replied: “The track didn’t look very good below where he was sitting.” This was objected to and stricken out. Then the record shows this:

“Q. South of where he was ? A. South of where he was sitting? A few holes down there. Q. What do you mean by a few holes down there? A. Holes in the middle of the track. O. Well, what sort of holes? A. Oh, there was supposed to be ballast. Q. You mean the ballast didn’t come up level with the ties, or above it? A. Yes, sir. Q. How was the surface of the track between the rails otherwise along there, except for these holes? A. Well, it was part of it that was ballasted above the ties. Q. You may state whether or not in locations like that, on a track approaching stations, the ballast is usually up level or with the ties? A. I don’t know hardly how I would answer that question. Some places it’s ballast and some places it isn’t. . . . Q. What were the conditions that night, as to light or darkness? A. It was awful dark; couldn’t see very far ahead of you. Q. About how far ahead could you see without a light? A. Four or five feet.”

There was evidence that at the place in question the surface of defendant’s roadbed between the rails was of gravel, chat, cinders and dirt. The center (as was usual) was higher than either side, for drainage purposes. In the center it was not always exactly even. Sometimes the surfacing would be a half inch or an inch- higher than the tie and sometimes the same below the tie. It ran in that respect about like the main track, and, as we understand it, about like the track did elsewhere in like locations relative to switches at small way-stations. The track being higher in the center, the ties would naturally become more prominent as one from right or left approaches the rail from the center. While this testimony was introduced on behalf of defendant we see no substantial contradiction of it and no impeachment of the witnesses by cross-examination or otherwise. The record shows, also, without substantial contradiction that at the place plaintiff got off there was nothing to prevent his running for the switch on either side of the track and outside of the end of the ties. . The shoulder and slope of the small dump were not in the way of use by a footman. There were no weeds, loose ties or other obstruction in the way. In fact there is unimpeached testimony that there was a little footway on the west side presumably made and used by brakemen, and some of the testimony shows there was one of like sort on the east side also. No holes or depressions in the center of the track were found on their examination of three or four inches in depth, or otherwise than as already indicated.

Recurring to the custom of running for the switch, the sum of it all was that the head brakeman, acting on his own judgment, either left the pilot or went down the steps from the gangway on the side of the engine. The usage, by the run of brakeman, was to do it about as much one way as the other taken as a whole. We give our estimate of it, not unmindful of the fact that a witness or so gave it as the result of his 'observation that the usual way was to step off the pilot. On this occasion plaintiff, who says that under like circumstances when making a run for a switch he always got off the pilot, disclaims (at least at one place in his testimony) .any knowledge of ever having thrown' this identical switch in a run north, and at another place explains why he used the pilot step instead of the gangway, thus:

“Q. Why didn’t-you get down off of the step at the side of the engine instead of off of the pilot? A. Well, I thought I was running just as much chance getting off there as any place. Q. Why? A. Because. I was liable to the suction and might slip down or back under the engine, and if I get off there I have the engine’s speed to overcome. I might run into a tie or a lump of coal or something like that and throw me.”

There was not a particle of testimony that any brakeman in making a run for a switch in the nighttime at this point, or at any other on the road, ever made it 'without a white lantern to see by, whether it was made on the track or to either side. No !such custom %vas shown. There was uneontradicted testimony to the effect that plaintiff, if he chose so to do, could have declined to run for the switch, and could have insisted on the train stopping.

There were some rules of defendant read into the record on both sides, thus:

“89. At meeting points between trains of different classes the inferior train must take the siding and clear the superior train at least five minutes, and must pull into the siding when practicable. If necessary to-back in the train must first be protected as prescribed by Rule 99, unless otherwise provided.
“9. When a train stops or is delayed, under circumstances in which it may be overtaken by another train, the flagman must go back immediately with stop signals a sufficient distance to insure full protection. When recalled he may return to his train, first placing two torpedoes on the rail when the conditions require' it.
“105. Movement of Trains. Both conductors and enginemen are responsible for the safety of their trains and, under conditions not provided for by the rules must take every precaution for their protection.
“303. Trainmasters. They must enforce the tonnage rating for freight trains, and must see that the movements of all trains are made without unnecessary delay.
“500. Reports must be made to the proper officers of any event detrimental to the interest of the company.
“In case of accident to trains, injury to persons, or the existence of anything which may imperil the safety of the service, information must be given at once, to be followed by report giving full particulars.
“Violation of rules or special-instructions must also be reported.
“519. Employees of every grade are warned to see for themselves, before using them, that the machinery or tools which they are expected to use are in proper condition for the service required; and if not, to put them in proper condition, or see that they are so put, before using them; or secure other tools that are in proper condition in their stead. The company does not wish, or expect its employees to incur any risks whatever from which, by exercise of their own judgment and by personal care, they cap protect themselves, but enjoins them to take time in all cases to do their duty in safety, whether they may, at the time, be acting under orders of their superiors or otherwise.
“716. Freight Service. They must see that their trains are filled out to the required tonnage.
“823. Freight brakemen will report to and -receive instructions from the trainsmaster. When on duty they must obey the orders of the conductor.”
“901. Enginemen. They are jointly responsible with the conductor for the safety of the train and the proper observance of the rules; and, although they are under the directions of the conductor with regard to the management of trains, they will not comply with any instructions which imperil the safety of the train or involve a violation of the rules.
“922. They must exercise caution and good judgment in moving and coupling cars and in starting trains to avoid all violent or sudden movements which might cause discomfort or annoyance to passengers, or damage to property.
“When handling trains carrying live stock, they must be careful to avoid shocks that will be likely to-throw the animals off their feet.”

Some complaint is made by respondent of the position taken by appellant at the trial on the admission of testimony. Significance is sought to be attached to that in connection with certain positions taken by appellant’s counsel in their briefs; but we find that respondent’s learned counsel tried their case with abundant caution in that regard and when an objection was made in the particulars in hand, he would withdraw the question. For example, he asked of a witness why they (brakemen) usually take the center of the track? On objection that it called for the conclusion or opinion of the witness, the question was at once withdrawn. He returned to the question more than once and on the same objection withdrew it again sua sponte. He attempted to show that there were other places besides Drexel where the same conditions existed and where the same custom was in vogue of running for a switch. On objection he withdrew that question before the court spoke. (But there was such evidence finally let in.) He undertook to show that within the observation of a witness track materials were piled by the company and left on the ground beside the track, the question not being directed to the place in question, but being- a general one. On objection made, counsel said: “I won’t press the question.” Other instances might be given, where questions were withdrawn without allowing the court to pass upon the objection. On such record, we will put away from us the contention that the position of defendant’s counsel is weakened because of objections to such offered evidence.

The petition counts on not only a negligently maintained “track and road bed” but a negligently maintained “right of way near said point so that the same had some holes and depressions therein . . . not reasonably safe,” etc.

There was no attempt to prove a cause of action on the charge relating to the right of way, if'by “right of way” is meant the company’s territory on either side of the track, nor was the case put to the jury on such theory.

The evidence such as it is on the existence of a hole in the track has been mentioned and we now come to the question of notice to defendant. There was no evidence of notice whatever .and none tending to show for what length of time it existed, if it did exist. There was testimony to the general fact that rain washed ballast away and that the passage of trains settled it. This was as far as the evidence went. Other causes were not exploited, save that in track construction generally there is more exposure of ties (holes?) as one approaches the rails from the track center.

One thing more on the record: Plaintiff’s counsel in one of their briefs urge as an excuse for their client’s lack of care, that (quoting):

“The same disregard of the company for the. interests of their men where the interests of the company in expedition of business were concerned that caused it to so load its trains that this custom of running for the switch became necessary, had brought Williams to a physical and mental condition where he was in no condition to exercise due care for his own safety by good judgment of other than by mere instinct. The defendant had worked him for more than twenty-four hours without rest or sleep,” etc.” (Italics, counsel’s.)

That statement of fact was sharply challenged by defendant’s reply brief and counsel in a later brief with commendable frankness confess error in that particular. The record shows plaintiff had ample rest and was called to duty on the evening of the same night he was injured. Nor, we add, is there any record tending to show negligence in loading the train, nor was such issue (as already pointed out) put to the jury.

In making this statement we have purposely made it uncommonly full. We (barring a reprint of the entire record) have adopted the alternative of giving our own estimate of the fair substance of the evidence on points deemed material to an application of the law to the facts, and plaintiff’s case must stand or fall on that application to those facts.

On such record, a majority of this court direct me to say that in their opinion plaintiff’s judgment cannot stand, because:

(a) As defendant carries all its eggs in the one basket, to-wit, that plaintiff did not make a case on the facts for the jury, it follows that the soundness of that position must be measured by the stiff general rule that on demurrer a defendant’s testimony (where contradicted) is taken as false; a plaintiff’s (where not self-evidently perjured or opposed to the physics of the ease) is taken as true. Contradictions between witnesses or self-contradictions by a witness, together with the credibility of witnesses and the weight due their testimony, are for the jury, not the court. So it is for the jury to reconcile differences and iron out the wrinkles of vagueness or discrepancy, if any. So, the court must allow to a plaintiff’s case on defendant’s demurrer the benefit of every reasonable inference of fact arising on all the proof. [Fritz v. Railroad, 243 Mo. l. c. 77; Stauffer v. Railroad, 243 Mo. l. c. 316.] “The party demurring admits the truth of the testimony to which he demurs, and also those conclusions of fact which a jury may fairly draw from that testimony. Forced and violent inferences he does not admit,” (italics are ours) “but the testimony is to be taken most strongly against him, and such conclusions as a jury might justifiably draw the court ought to draw.” [Per Marshall, C. J., in Pawling v. U. S., 4 Cranch, 219; Pleasants v. Fant, 89 U. S. l. c. 121.] It is in the light of such guiding rule defendant’s demurrer must be ruled, not otherwise.

(b) Was plaintiff guilty of such contributory-negligence as barred recovery? We think he was. Without a particle of precaution or any visible concern for his own safety he, an experienced brakeman, sprang on the track ahead of a moving engine (intending it to follow him as he ran several hundred feet) in the darkness of night without a light to see by, taking his chances of a slip, a misstep, a stumble, a fall, probable death therefrom, or (at the very least) the imminent danger of the most grievous and %mpreventable injuries. Ob-serve, lie did not even nse the little light he had to' spy out the ground. He asked no advice and did not report to the engineer that he had lost his seeing light and thus put it up to him to stop the train because of that misadventure. He did not attempt to relight-his light, but thoughtlessly put himself outside the pale-of human aid in case of disaster in his run, knowing-nothing of the way and seeking no information. If he had blindfolded himself and had sprung off the nose-of that engine, he would not have put himself in a worse predicament voluntarily. His only excuse was-that he “didn’t think he had time to relight his light.” Mark, he didn’t counsel with the engineer on that pregnant fact. We shall take judicial notice of the value-of a light to the human eye in the night time in running along an unknown runway. A brother suggests-that Diogenes used a lantern in the day time, but that was on a special quest, to-wit, to find an honest man, and the precedent is without weight. Matt, xxv, 2 to-10 is more in point. Speculative fancies on whether a man with a lantern could or likely would see a hole-in the track four inches-deep and of a size to take in a foot are of no value in getting at the truth of it. “ The-light itself was the test. .As a bird in hand is worth two in the bush, so an ounce of fact is worth a pound of conjecture. We think, too, that the whole situation must be judged from the standpoint that if time failed him, then, in all reasonable probability, there could no worse happen than a possible broken drawbar; for,, observe, running for the switch necessarily involved the proposition that the engineer would stop without a lantern signal, as he did in fact do, and because of the-green switch light, before his engine reached the point of the switch. The fact was that the train stopped and started without difficulty or broken drawbar. The fact was that the other train was over two miles off and, with ample provisions for flagging and warned of its necessity (as would be the case in that event) it was a vain fear to anticipate a collision. And what .says the maxim? Vani timoris justa excusatio non ■est. "We can not very well write the law to be that, under such facts plaintiff had the right to shift over ■on the shoulders of defendant the sole responsibility for such negligent conduct — such a leap in the dark. It is not the present law that everyone else is responsible for protecting one from injury except that one himself.

Let it be conceded to plaintiff that the dangerous ■custom had grown up of running down the track for a switch in the nighttime from the nose of a going locomotive. Let it be admitted that the custom had existed so long, and was so uniform, that defendant's notice of the custom might be inferred from the flux of time, yet there is not a shred of testimony tending to show that this custom involved running in the darkness without a light to see by. Plaintiff was outside the custom as proved, and we know of no principle of law that would relieve him from responsibility for his contributory negligence in doing that thing. It is self-evident that when one justifies under a custom, his acts must be within the custom. He must not pour new wine in an old bottle.

Cases may be found where a party has negligently put himself in peril and afterwards the master, through :Some act of negligence, has injured him and where recovery has. been alloAved. But such cases are not this ■case and we are cited by plaintiff’s counsel to neither a controlling nor persuasive precedent involving the facts we are dealing Avith here where recovery was allowed.

We know very well that the proposition is abroad in the land that the doctrine of contributory negligence should be exploded. We know, too, that that proposition is being hammered out on the anvil of public discussion and in some other jurisdictions has been crystallized into written law. We take it that if á new and refined sense of social justice ever requires that, in the first instance, the carrier pay remunerative damages for an injury although, the servant contributes thereto by his own negligence (or even when the master is not negligent) and in the second instance that the loss should be shifted by distribution over on the general public, as it would be under known and immutable economic principles, then, the same new and refined sense of social justice will require that means of payment through a proper adjustment of rates for freight and passenger carriage be provided at the same stroke. But this is by the way. We are not now called upon to write the law under such circumstances; for that would be writing it as it is not and not as it is.

If, as maintained by some publicists, the defense of contributory negligence be an evil in the law; if the multiplicity of squabbles that arise over the application of the alleged refinements of that doctrine be defects calling for a cure by striking at the root of the matter, not cured one at a time as mosquitoes were once killed (we borrow the similitude), but slapdash in saltatory fashion and by wholesale, as science now teaches, then we must bide the time the lawmaker first speaks in that behalf and so writes it down.

There is another phase of the question of contributory negligence insisted on by defendant’s counsel, to-wit, negligence as a matter of law in choosing the way self-evidently most dangerous of two presented to him in making his run. As the case has already broken, we leave the point to be decided, if ever, in some case turning on it as a pivot. Ultimately and on final analysis it involves the question whether the carrier must make two ways safe for running' in the night time with or without a light, namely, one on the track, the other beside the track. It also involves the question whether, if the carrier (we will say by a rule) requires the servant to run ahead of a going engine in the night time with or without a light, such a rule would stand the test of reason as a humane regulation. Would disobedience to such an abominable rule defeat recovery? It- also involves the question of the danger from “suction” by a train going at the rate of speed of a fast walk and others referred to by plaintiff as determining his choice of a runway. But we leave those questions to be answered when they are here to be ruled as matter of necessary substance, and not, as here, where the case has broken.

Nor, by the same token, is it necessary for us to decide the question most learnedly and elaborately discussed by counsel, to-wit, the question of defendant’s negligence in track maintenance at the place in question, as a matter of law on the facts in judgment, a negligence stubbornly denied. With that conclusion we put away from us the further questions whether, first, there was substantial evidence of a negligent hole or depression, and, second, more important still, whether there was any substantial evidence tending to show that such hole or depression, if any, had existed such length of time as would bring home notice to defendant. We say substantial evidence, because the “scintilla” doctrine is no longer the rule in this jurisdiction. It is exploded here as it is in England (Ryder v. Wombwell, L. R. 1870, 4 Ex. 31) and as it is as a Federal doctrine (Pleasants v. Fant, 89 U. S. 116).

Unless that sympathy for this unhappy man, which we admit, be allowed to press our judgment beyond the utmost known fringe of the law, as declared in this jurisdiction, it must be held that error was committed in refusing defendant’s demurrer.

With that conclusion reached, there is nothing left to do except to pronounce the judgment we now do, to-wit, the judgment must be reversed. It is so ordered.

Graves, Walker and Faris, JJ., concur; Brown and Bond, JJ., dissent. Woodson, J., does not sit.


author: WOODSON, J. .WALKER, J. Nortoni, J.,

text:
    CHARLES McINTYRE v. LEWIS B. TEBBETTS et al., Appellants.
    In Banc,
    April 2, 1914.
    VICE-PRINCIPAL: Fellow-Servant: Dual Capacity: Driver of Wagon. The driver of a large wagon used in hauling carriages, buggies and other vehicles from defendants’ factory to the depot where they were loaded into cars and shipped, was empowered to employ and did employ the men or crew needed by him in loading and unloading the vehicles, and managed that work, having control of the men and giving to them a statement of the number of hours each worked, and those were paid by defendants. He hired plaintiff and another on the day of the accident to assist in loading and unloading the wagon, and after it was loaded drove it to the depot. On the way he sent plaintiff with a bar to the office of defendants’ shipping clerk, and told him he would wait for him across the railroad tracks. When plaintiff arrived at the point where the driver was waiting, he attempted to climb into the front part of the wagon, where he had previously been riding and was expected to ride. Just as he planted his foot on the hub of the front wheel and rose, throwing his weight on the hub, the driver started the team, throwing him off the wagon on the street and seriously injuring him. Held, that, in hiring the men and controlling their work in loading and unloading the wagon the driver was a vice-principal of defendants; but in driving the wagon, and at the immediate time of the accident, he was not a vice-principal, but a fellow-servant with plaintiff, and therefore plaintiff cannot recover for the injuries due to the driver’s negligence.

      Held, by WALKER, J., dissenting, with whom LAMM, C. J and BROWN, J., concur, that plaintiff at the time of the accident was acting in the line of his duty and under the supervision of the driver, and the driver’s position throughout the whole transaction was that of vice-principal. His status should not be determined by one isolated act, but by all the facts in evidence which define his relations to plaintiff and defendants, viewed in the light of his admitted general authority in the premises.
    Appeal from St. Louis City Circuit Court. — Hon. George W. Shields, Judge
    Reversed.

      J. Lionberger Davis for appellants; Jones, Hooker, Hawes <& Angert of counsel.
    (1) Defendants were not negligent. They had performed every duty which the law and the circumstances imposed upon them. Moore v. Railroad, 85 Mo. 588; Sehaub v. Railroad, 106 Mo. 87; Browning' v. Railroad, 124 Mo. 55; Card v. Eddy, 129 Mo. 510; Grattis v. Railroad, 153 Mo. 380; Jones v. Railroad, 178 Mo. 528; Livengood v. Lead Co., 179 Mo. 229; Edge v. Electric Ry. Co., 206 Mo. 471; Zellars v. Light Co., 92 Mo. App. 107; Railroad v. Baugh, 149 U. S. 368; Railroad v. Hambly, 154 U. S. 349; Railroad v. Keegan, 160 U. S. 259; Bradley v. Tea & Coffee Co., Ill S. W. 919. (2) The driver of the wagon was not negligent. (3) The driver of the wagon was not the vice-principal or alter ego of the defendants. The driver and plaintiff were fellow-servants. Lee v. Bridge Co., 62 Mo. 565; Marshall v. Schricker, 63 Mo. 310; Relyea v. Railroad, 112 Mo. 86; Glover v. Bolt & Nut Co., 153 Mo. 342; Hawk v. Lumber Co., 166 Mo. 121; Stephens v. Lumber Co., 98 Mo. App. 365; Stocks v. Transit Co., 106 Mo. App. 129; Koerner v. St. Louis Car Co., 107 S. W. 481; Strottman v. Railroad, 109 S. ~W. 769; and cases under points 1 and 4. (4) The act of the driver, if negligent, was the act of a servant as such. Moore v. Railroad, 85 Mo. 588; Day-harsh v. Railroad, 103 Mo.' 570; Miller v. Railroad, 109 Mo. 350; Card v. Eddy, 129 Mo. 510; Grattis v. Railroad, 153 Mo, 380; Jones v. Railroad, 178 Mo. 528, 544 ; livergood v. Zinc Co., 179 Mo. 229; B'ane v. Irwin, 172 Mo. 1. c. 310; Fogarty v. Transfer Co., 180 Mo. 490; Edge v. Electric Ry. Co., 206 Mo. 471; Garland v. Railroad, 85 Mo. App. 579; Zellars v. Light Co., 92 Mo. App. 107; Bien v. Transit Co., 103 Mo. App. 399; Stephens v. Lumber Co., 110 Mo. App. 1. c. 405; Bokamp v. Railroad Co., 123 Mo. App. 270. (5) Plaintiff assumed the risk of the accident and consequent injury. Plaintiff was guilty of contributory negligence. Schroeder v. Railway, 108 Mo. 322; Ross v. Railroad, 112 U. S. 377, 383; Railroad v. Baugh, 149’ U. S. 368. (6) The court erred, therefore, in refusing to direct a verdict for the defendants as requested.

      Willimn L.Igoe for respondent.
    (1) The question of whether the driver was a vice-principal or a fellow-servant was properly submitted to the jury. Fogarty v. Transfer Co., 180 Mo. 490; Bien v. Transit Co., 108 Mo. App. 414; Smith v. Car & Fdry. Co., 122 Mo. App. 610; Stephens v. Lumber Co.,. 110 Mo. App. 398. (2) The driver was negligent. (3)' The negligence of the driver was the negligence of a vice-principal and the master is liable. Holweg v. Telephone Co., 1951 Mo. 149 ; Donnelly v. Mining Co., 103 Mo. App. 349; .Strode v. Conkey, 105 Mo. App. 12; Haworth v. Railroad, 94 Mo. App. 224. (4) The law imposes upon the master the duty not to expose his employee to unknown risks not ordinarily incident to his employment, and not to increase the hazards.of his position. Dayharsh v. Railroad, 103 Mo. 576; Russ v. Railroad, 112 Mo. 50; Miller v. Railroad, 109 Mo. 357; Hollweg.v. Telephone Co., 195 Mo. Í49.
   WOODSON, J.

The plaintiff brought this suit in the circuit court of the city of St. Louis, against the defendants to recover $10,000' damages for personal injuries received by him through the alleged negligence of the defendants.

A trial was had in the circuit court which resulted in a judgment for the plaintiff, for the sum of $2500.

After moving unsuccessfully for a new trial, defendants appealed the cause to the St. Louis Court of Appeals. The majority opinion of that court, written by Judge Goode., reversing the judgment of the circuit court, was dissented from by Judge Noutoni, and as a result thereof the cause was transferred to this court; and upon reaching- here it was assigned to Division No. 2, and there shared the same fate as it did in the Court of Appeals, and because of the latter dissent the cause was transferred to Court in Banc.

The case was again argued in Banc and after submission it fell to my lot to write the opinion of the court.

After having carefully read the record and briefs of counsel, as well as the various opinions written in the Court of Appeals and in Division No. 2 of this court, I have reached the conclusion that the majority opinion written by Judge Goode in the Court of Appeals correctly declares the law and properly applies it to the facts of the ease, and his opinion, with certain additions to be made, will be adopted as the opinion of this court, and is as follows (formal parts omitted):

“Defendants are partners engaged in the manufacture of carriages. In their service was Joseph Kuhr, who was in charge of a freight wagon, his task being to drive the wagon and manage the helpers or crew which accompanied it. The wagon was a large vehicle, weighing when unloaded four thousand pounds, and having a bed very much wider than the usual width of wagon beds. One use of this vehicle was to haul surreys, buggies and other vehicles in which defendants dealt, from their factory or warehouse to the shipping-stations of various railway companies in St. Louis, for shipment elsewhere. Usually six or seven crated vehicles were loaded in the wagon by the crew who went with it, hauled to the depot and unloaded there. Kuhr had command over employees who assisted in loading and unloading the wagon and accompanied it from the warehouse or factory to the depot, and besides directing these employees, he hired them. Three or four men were required to carry on the work of the wagon. A crew was not kept in regular employment, but when one was needed Kuhr would pick up and hire by the hour two or three men who were available and in the habit of doing these odd jobs. The compensation allowed was seventeen and one-half cents an hour while they were at work. One of these men was plaintiff and he had been hired off and on four months; sometimes by Been, a clerk in one of defendants ’ warehouses, but oftener by Ruhr himself. Ruhr had also employed-other men when he needed them to help with the wagon, and his right to hire such help was recognized by defendants. When he had finished the job for which he had employed a crew, he would give the men their time and they would go to the office and get their money. On the day of the accident Ruhr had to haul some vehicles from the factory to a railway depot for shipment and needing a relay of men to assist in the work, told plaintiff, who appears to have been waiting about the factory in the hope of a job, to hunt up another man named Tom Malloy, whom Ruhr was in the habit of using for similar work, and hurry back, as there was not much time in which to get the load into the car. Plaintiff found Malloy, and Ruhr and these two men loaded the wagon and started to the depot, or rather to the John Deere Buggy Company’s warehouse or plant, through which the vehicles had to be carried to load them into the car. Their course took him in the vicinity of the shop where Been, the shipping clerk, was in charge. In the wagon was an implement known as a pinchbar, which Ruhr wished to leave at that shop; so he told plaintiff to take the bar to the shop, and meanwhile he (Ruhr) would drive across certain railway tracks' at the point and wait until plaintiff returned. Plaintiff took the bar as told, and on coming back to the wagon attempted to climb in the.front end where he had been riding and was expected to ride. Just as plaintiff planted his foot on the hub of the front wheels and rose, throwing his weight on the hub, Ruhr started the team, throwing plaintiff off the wagon on the street and injuring him seriously. Thus runs the evidence for plaintiff. In defense it is said Ruhr was a fellów-servant of plaintiff/ •or, if a vice-principal part of the time, was a fellow-servant when he started the wagon and threw plaintiff off. This is the charge of negligence:

“ ‘Plaintiff says that on the said 29th day of January, 1907, and while in the performance of his duties as an employee of defendants, he was getting upon said wagon, and while he was upon one of the wheels of said wagon, the said “Joe” who was then and there acting for defendants and exercising his power to superintend, direct and control the operation of the said wagon, negligently and carelessly caused said wagon to he drawn forward, without warning or notification to plaintiff, although the said “Joe” knew, or by the exercise of proper care might have known, that plaintiff was on the wheels of said wagon and about to climb upon said wagon. Plaintiff states that in consequence of the negligent and careless movement of said wagon as aforesaid he was thrown violently to the ground, and his right leg and right side bruised and the sight of the right eye permanently destroyed and causing him great bodily pain.’
“The court refused to direct a verdict for defend.ants and refused to declare Kuhr was a fellow-servant •of plaintiff, at the instant of the accident. At defendants’ request the jury was told no presumption of negligence on the part of defendants arose from the fact of the accident, but the burden was on plaintiff to show he was injured because of defendants’ negligence in •starting while plaintiff was attempting to get into the wagon; that it was not negligence to start if defendants •did not, or by the exercise of ordinary care would not, have known plaintiff was attempting to get in at the time; that if plaintiff slipped and fell, but not as the result of any act of defendants or its agents or servants, the verdict must be for defendants. On the issues of whether or not Kuhr was a vice-principal usually, and whether he was acting as vice-principal or fellow-serv.ant when he drove forwrd just as plaintiff was stepping into the wagon, the court gave these instructions, to which defendants excepted:
‘ ‘ ‘ The court instructs the jury that if you find and believe from the evidence that Joseph Ruhr was employed by defendants and'was a foreman in charge of the team and wagon in question, and the man employed on and about said wagon, and by virtue of his employment and position had immediate control and direction •of plaintiff and others engaged in working on and about said wagon and had authority to direct and control plaintiff’s work, then.the said Joseph Ruhr was a vice-principal and was not a fellow-servant of-plaintiff.
“ ‘The jury are instructed that if the negligence of a foreman arises out of and is the direct result of the exercise of authority conferred upon him by the master, as a foreman, the master will be liable for such negligence, but if the negligence complained of consists of some act committed or done by him which relates to his duties as a co-laborer with those under his control, and which might just as readily have happened with one of them having no such authority, their employer will not be liable. If you find and believe from the evidence that plaintiff on or about the 29th of January, 1907, was in the employ of defendants and that while so employed and while acting in the line of his duties he was getting upon the wagon in question and while upon one of the wheels of said wagon, said wagon was started forward by the driver Joseph Ruhr and that plaintiff ■did not know that said wagon was about to be moved .and that no notice- or warning was given him of the moving of said wagon and that the starting forward of said wagon was the direct cause of the injuries to plaintiff, and if you further believe from the evidence that the said Joseph Ruhr was a foreman or vice-principal of defendants as defined in instruction No. 1, and that in starting said wagon forward the said Joseph Ruhr was in the exercise of his authority and not merely in the discharge of his duties as a co-laborer of plaintiff, and if you further find that at the time of receiving said injuries, plaintiff was himself exercising ordinary care and prudence, then your verdict will be for the plaintiff.’
“A verdict for $2500' was returned in plaintiff’s favor and judgment having been rendered in accordance with it, this appeal was taken.
“Kuhr was foreman of the wagon crew and the other members were under his authority. The wagon was, so, to speak, a detached place of operation where part of defendants’ business was carried on under Ruhr’s control. He was empowered to employ men for his crew, regulate their work and let them go at his pleasure. Those facts were presented in the first instruction, and the jury were told if they found them to exist, Kuhr was a vice-principal and not a fellow-servant of the plaintiff. The court did not err in this ruling. [Miller v. Railroad, 109 Mo. l. c. 357; Russ v. Railroad, 112 Mo. 45; Edge v. Electric Ry. Co., 206 Mo. 471.] We will say all the instructions strike us as accurate and fair, and if the case should have gone to the jury on the questions of whether Kuhr was a vice-principal or fellow-servant, and in which capacity he was acting at the moment of the accident, the issues were well presented. The main part of Ruhr’s task was to drive, the wagon and team. He did this as well as control the hauling and giving orders to" the men. Hence he discharged two-fold functions, and the principal inquiry is whether the entire evidence proved he was acting as a common member of the wagon crew at the instant he drove forward and caused plaintiff’s hurt, or as vice.-principal. Counsel for defendants insist the evidence shows beyond inference to. the contrary, the starting of the wagon was an act incident to his ordinary duties as driver, and in no sense an exercise of his authority as foreman. The leading opinion in this State on what is denominated the dual capacity doctrine, is Fogarty v. Transfer Co., 180 Mo. 490, wherein it appeared the driver of a freight wagon had been injured, by the negligent act of a foreman. Many of the facts were like those we have here, but one distinguishing circumstance appeared. Said foreman took the lines from Fogarty and undertook to back the wagon himself; thereby assuming, by virtue of the authority vested in him as foreman to supersede the regular driver in the performance of a task the foreman had not been performing beforehand in the course of which he hurt the driver. In the case at bar, when Ruhr started the team forward and hurt plaintiff, he simply continued to drive; for, properly considered, he was driving while he held the lines as the wagon and team stood waiting for plaintiff. It is plain the careless act of the foreman in the Fogarty case wears more the appearance of an exercise of mastery than does Ruhr’s as the opinion shows (1. c. 512); and hence it does not follow the capacity in which Ruhr acted was for the jury, merely because the Supreme Court held the question of capacity was for the jury in the Fogarty case. In Bien v. Transit Co., 108 Mo. App. 399, this court approved the submission of a like question on the authority of the Fogarty opinion, and it is charged now by counsel for the defendant that in doing so we misled the court below in the present ease into submitting to the jury what was really a court matter. The facts of the Bien case regarding the magnitude and complication of the affairs controlled by the foreman who figured therein are so unlike those before us as to put that authority out of point; but we seize the opportunity to call counsel’s attention to the fact that the Supreme Court in Hollweg v. Tel. Co., 195 Mo. 149; and Edge v. Railroad, 206 Mo. 471, 494, approved and quoted from the opinion in the Bien case. Counsel say we misconceived the import of the Fogarty case in holding it was applicable to an accident that had happened in this State, because the Supreme Court held the question was a jury one in obedience to the law of Illinois where the Fogarty accident happened. This contention is unsound. The Supreme Court showed in the Fogartyopinion (1. c. 511) the law of Illinois and the law of Missouri as regards when the issue of vice-principal or fellow-servant is for jury or court, are hot different. The courts of Missouri and Illinois hold alike on this matter, and that the question is for the jury when the facts are in dispute or reasonable men may come to different conclusions from them, and is for the court when the evidence will permit but one conclusion. [Norton Bros. v. Nadebok, 190 Ill. l. c. 599.] What we have said supra is more by way of answer to the attack of counsel on the opinion in the Bien case than in decision of this one.
“Some of the early Missouri opinions either explicitly or implicitly refused to determine the master’s liability for an injury to an employee by a co-employee, upon the theory that a superior servant or foreman might do twofold duties,- and the master be liable for his carelessness while engaged in the performance of one class of duties, because the superior servant was then exercising the master’s authority, and not be answerable in the other class, when he was performing duties common to him and the injured servant. [Hutson v. Railroad, 50 Mo. App. 300; Hughlett v. Lumber Co., 53 Mo. App. 87; Dayharsh v. Railroad, 103 Mo. 570; Russ v. Railroad, 112 Mo. 45.] We will not examine the facts and doctrine of those cases, because the dual-service theory is established as the law of the State by the recent decisions. [Fogarty v. Transfer Co., supra.] Lawyers disagree in their opinions about the soundness of that doctrine, but if it is to be a rule of decision, the facts of the present ease invoke it with peculiar force. Unlike the foreman in the Bien case, Kuhr was charged with the regular performance of common duties; wherein he was a co-worker with the wagon crew. The rule is more acceptable in such a case than where the foreman or vice-principal was not charged with any service common to other employees, hut of his own volition undertook an act of common service and in performing it-hurt a workman. Long reflection has failed to reveal how Kuhr’s act of driving forward involved an exercise-of authority. It seems to us to have been beyond doubt an act of common service which was done in the course of his ordinary task. We cannot imagine a case wherein a person who is both foreman and common employee could do an act more clearly pertaining to the latter capacity rather than foremanship, than was Kuhr’s starting the team. The causal act of Kuhr was-within the description in Bane v. Irwin, 172 Mo. 306, 317, of what is a fellow-servant’s act though done by one who is foreman, too. ‘We agree with counsel for defendant, “It is the act and not the rank of the vice-principal which determines whether two employees are-fellow-servants.” In this case the acts of Gibbs were the acts of the master. It is true that, according to the evidence, Gibbs at times did the work of a servant in loading and firing the shots, and had the injury occurred while he was performing a servant’s duty, he and plaintiff would have been fellow-servants, but it is clear that the negligence in this case was the negligent . order to plaintiff to return to the-dangerous place and fire the remaining shot and the injury was the consequent result of that order, and not the negligent loading and tamping of the shot. While Gibbs acted in a dual capacity, the injury here resulted from the order in making which he represented the master.’ We are cited to Hollweg v. Tel. Co., 195 Mo. l. c. 166, as an authority for plaintiff. In that case the foreman of a department caused an injury to a fellow employee, by making the place where the latter worked' unsafe during the-temporary absence of the regular operator of the machine. The foreman attempted to operate the machine,, left a block of wood on the table and this block was the cause of the injury. Said case may rest on the ground that the master’s non-delegable duty to use ordinary •care to furnish the servant a safe place to work, was broken. The Dayharsh case was distinguished on the ■ same ground in the Fogarty opinion which examines and discriminates the various Missouri decisions.”

In addition to what has .been said by the Court of Appeals regarding’ the law of this case,. I wish to add the following observations:

The record shows that the main duty of Kuhr, in fact practically all of his duties, were that of a common laborer, engaged to haul and deliver buggies and carriages to various depots in the city of St. Louis, but ■occasionally, when extra help was' needed to unload the buggies and carriages, either he or one Been, a clerk in the office of the defendants, would employ one or two persons for a few hours for that purpose, which in all probability did not take more than five minutes a week of Kuhr’s time, and all the remainder of his time and duties, as previously stated, were devoted to hauling and delivering the vehicles mentioned.

The legal proposition here presented is, did the ■devotion of that five minutes, or whatever number they may have been, in occasionally employing those men, ■constitute Kuhr a vice-principal in the control and management of that entire business ? I think not.

Suppose Kuhr had never employed any men at any time, but they had always been employed by Been exclusively, could it then be said that Kuhr was a vice-principal simply because he was the driver of the team and assisted in unloading the vehicles ? I again say no; and if that is not true, then every employee would be a vice-principal.

Again suppose in this particular instance Been had ■employed the plaintiff instead of Kuhr, would that fact have constituted the laborer a vice-principal? I think not; no more than where a farmer employs two men to gather corn and directs one of them to drive the team and wagon. In each case they would be fellow-servants and that relation would not be changed even though the other party had been employed by the driver, at the request of the farmer, except as to the act of employment. In all other respects they would be fellow-servants. I think this cannot be seriously questioned; and by parity of reasoning the same rule should and does apply to the case at bar. The plaintiff and Kuhr, at the time the former was injured, were engaged in a common employment, namely, the hauling and delivery of the carriages, and the mere fact that Kuhr had some hours before employed plaintiff to assist him in doing that common work did not change their legal relations.

The case of Dayharsh v. Railroad, 103 Mo. 570, cited by Judge Goode., is not in point, as he properly ruled, for in that case the hostler in charge of the roundhouse and whose negligence caused the injury was unquestionably, and at all times, a vice-principal. But as previously stated, in this case, there was not a semblance of such relation.existing: between plaintiff and Kuhr, nor had there ever been except the brief moment that was taken by the latter to request the former to assist him in hauling and unloading said vehicles.

I am, therefore, clearly of the opinion that the majority opinion of the Court of Appeals correctly declared the law of the case, and so believing, the judgment of the circuit court should be reversed.

Graves, Faris and Bond, JJ., concur; Walker, J., dissents in separate opinion in which Lamm, G. J., and Brown, J., concur.

DISSENTING OPINION.

.WALKER, J.

I dissent from the conclusion reached in the majority opinion that Kuhr, the driver of the team, was not a vice-principal at the time plaintiff received the injuries which constitute the basis of. this action. So pronounced is Kuhr’s general relation as a vice-principal to plaintiff and the other employees that the St. Lonis Court of Appeals, in its statement of the facts, found it necessary to say when this case, was reviewed by that court, 140 Mo. App. 116, that: “Ruhr had command over the employees who assisted in loading and unloading the wagon and accompanied it from the warehouse or factory to the depot, and besides directing these employees he hired them;” and in its opinion following the statement of facts the said court further says: “Ruhr was foreman of the wagon crew and the other members were under his authority. . . . He was empowered to employ men for his crew, regulate their work and let them go at his pleasure.” These indubitable facts are admitted in the same words in the majority opinion, which holds nevertheless that Ruhr and the plaintiff were, at the time the latter received the injuries, fellow-servants, and hence defendants are not liable.

This court has many times defined the term vice-principal. One of the recent definitions, not different in principle from the others, but to be commended for its terseness, is that11 a vice-principal is one entrusted by the master with power to superintend, direct or control workmen”. [Burkard v. Leschen & Sons Rope Co., 217 Mo. 466.] It is said in this same case (Syl. 2) that “if plaintiff was under the control and direction of another one of defendant’s employees, who directed him what to do and was his superior in the particular work they were performing at the time, although they worked together at the same common work, they were not fellow-servants, but the other was the defendant’s vice-principal.” In an earlier case (Moore v. Railroad, 85 Mo. 588) often subsequently approved, it is held that fellow-servants are those engaged in the same common work without any dependence upon or relation to each other except as co-laborers without rank. [See also Burkard v. Rope Co., supra.] These definitions are hallmarks in the law of Master and Servant, but it is not inappropriate that they should he posted here preliminary to a presentation of the facts from which we will be enabled to determine the relation of Kuhr to plaintiff and the other employees, regardless of the admissions.

The facts are as follows:

That Kuhr hired- the plaintiff; that he was authorized to direct and did direct plaintiff’s labor; and that he was in the exercise of this authority when he ordered plaintiff to leave his place on the wagon, while en route to the point of unloading, and take the pinch bar, an instrument which had been used in the labor, to the shop and to hurry back as there was not much time to get the load into a car. Plaintiff was in the immediate line of his duty when returning from said errand, he attempted to mount the wagon at a point where Kuhr said he would wait for him; in attempting so to do, plaintiff was injured by the precipitate starting of the wagon by Kuhr, just as plaintiff placed his foot on the hub for the purpose of resuming his former position to accompany the wagon to its destination where he was, under Kuhr’s direction, to assist in unloading same. Throughout the entire transaction, therefore, there runs plain as a pikestaff, the impress of Kuhr’s authority; true, his mere starting or stopping of the wagon was, in itself, the act of an employee, or, if you choose, a fellow-servant ; but this act alone, under a fair interpretation of the evidence, as we view it, does not determine the character of Kuhr’s relation to plaintiff during the period of the latter’s employment, but all of the pertinent facts are to be considered together, so as to form, if possible, a connected and harmonious whole which will support a reasonable conclusion as to the nature of the relation. Every other fact except the starting of the wagon points directly to Kuhr’s dominance over the plaintiff during the employment, and to hold that Kuhr was not a vice-principal at that moment necessitates a severance or separation of that act, at the instant of its occurrence, from all the other facts in the case, followed as is shown by the testimony, by a resumption of Ruhr’s right of supervision immediately thereafter. As we have stated, it is admitted by the majority opinion that Kuhr’s general relation to plaintiff, except at the instant of starting the wagon, was that of a vice-principal. Whether admitted or not, it is, in our opinion, a conclusion which flows naturally from the facts. If this be true, then Kuhr, at the moment he started the wagon, occupied, under the facts here, the the same relation to plaintiff as at other periods of the employment. This is clearly demonstrable. Kuhr’s .status or relation was dependent upon his authority to ■employ plaintiff, his supervision of plaintiff’s work during such employment, with the added authority to discharge plaintiff, whether at his will' or when the work was completed, is not material. All of these requisites to the creation of the status of a vice-principal existed not at intervals during the employment, but throughout the continuance of same, whether plaintiff was assisting in loading or unloading the wagon or climbing on or off of same, if at the time plaintiff was acting in the line of his duty and under the supervision of Kuhr, facts which are not gainsaid. Kuhr in the prosecution of the work in which they were engaged, was empowered, not as a teamster, but as a representative of the master to stop or start, not only the wagon, but the entire work as he willed. In the exercise of this power he halted the progress of the wagon eu route to the station to enable plaintiff to take the pinch bar to the shop and return and assist in the unloading; in the further exercise of this power, with a knowledge of plaintiff’s return and his attempt to mount the wagon, Kuhr negligently started same, resulting in plaintiff’s injuries. In the presence of these facts, we do not feel that we are authorized in isolating one of them, in no wise different from the others, in order that it may be held that Kuhr at the time of the accident was a fellow-servant, when at all other times he was clearly a vice-principal. The conclusion in the majority opinion cannot as we read the evidence, be reached by any other method of reasoning; and we respectfully submit that it is not the correct one. To recapitulate: Kuhr’s status as a vice-principal or fellow-servant should 'be determined not by one isolated act, but by all the facts in evidence, which define his relations to plaintiff and the other employees, viewed in the light of his admitted general authority in the premises.

If, as we have contended, Kuhr was a vice-principal, the doctrines in regard to dual capacities and superior servants may be eliminated from consideration as simply serving to obscure the issue. The evidence discloses none other than the relation of complete dominance by Kuhr over plaintiff and the other employees. This being true, it is not material that Kuhr usually in Ms relations towards the master, but never towards plaintiff or the other employees, occupied the relation simply of a common teamster. What does it matter, under this state of facts, whether the defendants themselves or Kuhr, their alter ego, started the wagon? Under either, defendants ’ liability is the same.

In brief the crucial difference between the majority and this opinion is the construction placed on Kuhr’s act in starting the wagon; the majority opinion holding that it was the act of an ordinary teamster who bore no relation to the other employees than that of a colaborer, and that this relation is determinable from the fact that he was acting as a teamster at the particular moment plaintiff was injured; while we contend that his relation should be determined, not by this one act, but from all of the facts bearing on his authority, including, of course, this act and all others. In other words, is the truth of a matter in issue (in this instance the nature of a relation) to be determined by one or all of the facts in evidence; if .the latter, then we insist that Kuhr was a vice-principal at the time of starting the wagon, and that defendants are liable for plaintiff’s injuries.

Nortoni, J.,

of the Court of Appeals, supplements his dissenting’ opinion in this case by certifying same to this court on the ground that the ruling’ in the majority opinion in said court is in conflict with Dayharsh v. Railroad, 103 Mo. 570. In that case, one Stephens, a “night hostler” (which meant in that connection one charged with the care of locomotive engines while in the roundhouse at night) was authorized to supervise and direct the labor of others engaged with him in the performance of his duties. While one of the men was underneath an engine shoveling out cinders, Stephens started it and crushed the former’s ankle. These co-laborers were held not to be fellow-servants, but that Stephens’s right of dominance made him the representative of the master, and that the latter was, therefore, liable for the injury, although at the moment of its occurrence Stephens was engaged in ordinary labor. In no material particular does this case differ from the one at bar, save in the instrumentalities causing the injuries, and we agree with the learned judge of the, Court of Appeals in his dissenting opinion that the result here should be the same as in the Dayharsh case, so far as. regards the determination of the relation of the actors in each case.

In Russ v. Railroad, 112 Mo. 45, a section foreman charged with the supervision of a number of men on a line of railway and a colaborer with them, directed a keg of water to be placed on a handcar, and while he and the others were propelling same it was derailed by the keg falling off on the track, and plaintiff, one of the laborers, was injured. It was held that the foreman was a vice-principal and that the master could not escape liability because the foreman was at the time of the accident engaged with the others in the ordinary labor incident to their employment.

The ruling in the Russ case (supra) is approved under a somewhat similar state of facts in Boyd v. Railroad, 236 Mo. 54, 80.

Hollweg v. Bell Telephone Co., 195 Mo. 149, is a kindred ease to the one at bar. Hollweg, while operating a machine under the general direction of a foreman engaged in like labor, was injured. It was held that the foreman was a vice-principal and the fact that he had a few moments before the accident been operating the same machine as a colaborer of Hollweg, did not lessen the master’s liability.

But why burden the record with the citation of further authorities in support of the conclusion we have reached? Viewed from our vantage, they clearly support the result of our reasoning; viewed from that of the author of the majority opinion (whose learning and judgment we generally appreciate and admire) they do not. Precedents, at best, are but persuasive, and, after all, the conclusion in each case must rest primarily upon its own facts. Thus buttressed, we can reach no other conclusions in this case satisfactory to our conscience and judgment than that Kuhr was a vice-principal at the time of plaintiff’s injuries, and that the defendants are liable therefor. As a consequence, it follows that the judgment of the Court of Appeals should be reversed, and that of the trial court affirmed.

Lamm, G. J., and Broimi, J., concur in this opinion.