
    Card v. Eddy et al., Appellants.
    
    In Banc,
    July 2, 1895.
    Railroad: injury to employee: vice principal: fellow servants. Plaintiff, a section foreman on a railroad operated by receivers, was injured by a piece of coal thrown from a passing engine by the fireman. It appeared from the evidence that it had been the custom to transmit along the road orders of the roadmaster to the section foremen, by forwarding them to the nearest station, and by then sending the order by some employee on the nest train, who, in passing, would throw it off to the person for whom it was intended. The order in this instance was inclosed in an envelope and was given to the fireman, who tied it to the piece of coal and as he passed plaintiff threw it to him, and in such manner that the latter’s eye was struck and put out. Held, that, under the facts stated, the fireman was not the vice principal or agent of the roadmaster in the delivery of the order, but was a fellow servant of plaintiff, and the receivers were not responsible for his negligence whereby plaintiff was injured. (Brace, O. J., Barclay and Burgess, JJ., dissenting.)
    
    
      Appeal from Cooper Circuit Cou/rt. — Hon. E. L. Edwaeds, Judge.
    Reveesed.
    
      Jackson <& Montgomery for appellants.
    (1) The petition does not state facts sufficient to constitute a cause of action. (2) Plaintiff’s evidence failed to make out a case, and the demurrer to the evidence should have been sustained. (3) The plaintiff and the person who threw the message and lump of coal from the train were fellow servants, and even if the latter was negligent plaintiff can not recover. Eor this reason the court erred in giving the plaintiff’s second instruction. In delivering the message the fireman did not act as fireman, and performed no act pertaining to or within the scope of the duties of a fireman. In that which he did he was acting entirely within the range of the same character and department of service as the plaintiff, while the instruction was dealing with their relations under entirely different duties and services. (4) The plaintiff was guilty of contributing negligence. He stood within four feet of where the train would pass, and watched the fireman as he prepared to throw the message. He knew the train was running rapidly and that the missile was to be thrown from it as it passed him, and yet he stood within arm’s reach and failed to take any precaution for his own safety. No prudent man would have taken such risks. (5) There was error in the instructions because they were contradictory.
    
      John JR. Walker for respondent.
    (1) The petition states a cause of action. The allegations of the petition and the evidence on the trial show gross negligence and recklessness on the part of the defendants. (2) The evidence showed that it had been the practice for many years to deliver orders to section foremen, by having some one on the trains throw them off when they reached the foremen; but the evidence further showed that this was the first time when the orders were tied to pieces of coal or anything else dangerous and thrown off. It was the grossest negligence to throw these orders tied to this piece of coal as they were. (3) The plaintiff and fireman were not fellow servants. The late decisions and elaborate discussion of this question have settled this point. Sullivan v. Railroad, 97 Mo. 113; Dixon v. Raib'oad, 19 S. W. Rep. 412; ParJcer v. Railroad, 19 S. W. Rep. 1119; Sehlereth v. Railroad, 19 S. W. Rep. 1134; Railroad v. Moranda, 93 111. 302, and same case, 108 111. 576, almost identical in its facts with the case at bar. In delivering the message, under the custom and practice of many years, the fireman was acting in the discharge of his duties as fireman. He represented the roadmaster, whose duty it was to give orders and directions, and his - acts were the acts of the company. Harper v. Railroad, 47 Mo. 567; Moore v. Railroad, 85 Mo. 588; Miller v. Railroad, 109 Mo. 350; Railroad v. De Armond, 86 Tenn. 73. (4) First. The plaintiff was not guilty of contributory negligence. The evidence conclusively shows that it was safe and prudent for plaintiff to stand where he did while the train was passing. Ring v. Railroad, 112 Mo. 220. Second. Contributory negligence of the plaintiff is a matter of defense, and must be pleaded and proved in order to escape liability; and plaintiff’s first instruction was proper. Sehlereth v. Railroad, 96 Mo. 509, and cases cited, (5) There, was no contradiction in the instructions. In plaintiff’s first instruction the jury were required to find that it was the custom for the road-master’s orders to be given plaintiff by being thrown off to him by some one of the train men as the train would pass the place where plaintiff was at work; whereas, defendants’ second and third instructions required the jury to find that it was not the usual and ordinary manner .of delivering such messages to have a piece of coal or some heavier substance tied to them. There is no contradiction in this.
   Macfarlane, J.

I adopt, in substance, the statement made by Babclay, J., to his opinion filed in division one. 24 S. W. Rep. 746.

“This is an action for personal injuries grounded on negligence. The defendants are the receivers of the M., K. & T.'Railway Co. The pleadings need not be specially recited.

“The case was tried before the court and a jury with the result of a verdict and judgment for plaintiff for $3,000, from which defendants appealed.

“That defendants were receivers in possession of, and operating, the railway line where the injury happened was admitted, and also that plaintiff was, at the time, in their employ as a section foreman.

“The plaintiff offered evidence tending to prove that one day in June, 1889, he and several laborers, under .his direction, were at work along the defendant’s railway, some three miles from Clifton station. At that place the track was laid upon an embankment. While thus engaged, a train approached, and the fireman on the locomotive, as it passed, threw out a piece of coal, which struck plaintiff in the left eye and destroyed the latter.

“It had been the custom for many years to transmit orders of the roadmaster to the section foremen along the road, by forwarding the same to the nearest station, and then sending the message by some employee on the next train, who would throw the message off in passing the party for whom it was intended.

“In this instance the message of the roadmaster was placed in charge of the fireman. It was inclosed in an envelope. The fireman tied it, with a string, around a piece of coal, about three by one and one half inches in size; and, while passing the spot where plaintiff was standing (about four feet from the track), threw the message and coal to him in such a manner that his eye was put out.

“Considerable evidence was submitted to show that the traffic (or operating) and road (or construction) departments of this railway were separately managed and directed, each under the supervision of a chief superintendent.

“The defendant’s evidence (so far as it contradicted plaintiff’s) was directed entirely to the question of the extent of plaintiff’s damages; but as no issue is made, in this appeal, on that point, we need not go into it.

“The foregoing is a sufficient sketch of the material features of the case.”

Defendant insists that plaintiff and the fireman, in the circumstances, were mere fellow servants, and the receivers were not therefore liable for the negligence of the one which resulted in the injury to the other. Counsel for plaintiff, on the other hand, insists that defendant is liable for the injuries caused by the negligent manner ifi which the message was delivered upon one of two grounds: First, that the fireman, in performing the duty imposed upon him, was the agent, or vice principal, of the receivers, and his negligence was that of his principal; second, that if the fireman was not a vice principal of defendant, then he and plaintiff were mere servants of a common master, their employment was in different parts of the service, and the receivers were not exempt from liability on account of the fellow servant rule.

I. I am able to see no possible ground upon which the first contention can be sustained. I agree, as claimed, that power to control and direct is not an absolute test by which to determine whether the relation of one employee to another is that of vice principal. The liability of the master for injury done to one servant through the negligence of another, engaged in the same department of service, is made “to depend upon the character of the act in the performance of which the injury arises, without regard to the rank of the employee performing it. If it is one pertaining to the duty the master owes to his servants, he is responsible to them for the manner of its performance.” Flike v. Railway, 53 N. Y. 549; Crispin v. Babbitt, 81 N. Y. 516; Ford v. Railway, 110 Mass. 240.

If, therefore, a careful delivery of the message was a duty the receivers personally owed to the plaintiff, the mere rank or grade of the fireman would not relieve them from liability if plaintiff was injured by a negligent performance of the duty. The liability on this ground must be determined from the character of the act performed. If it was one the receivers owed to plaintiff it was their act. If it was one falling simply within the duty of the servant it was the act of the servant, and the defendant would not be liable for its negligent performance, assuming that the' relation of plaintiff and the fireman did not bring them within the department rule.

The act the fireman was required to perform was the delivery from a running train of a message to the plaintiff.' It can not matter how important the message may have been, nor that it contained an order the receivers, through their roadmaster, or other agent, were required to give. The injury did not result from the nature of the message or from a failure to transmit it. The service required of the fireman was that of a servant which any messenger could have performed, and the manner of its delivery did not pertain to the duty the receivers owed to plaintiff. They owed him the duty only of using reasonable care to select a competent and careful messenger.

After the master has discharged the duty he owes his servants, such as proper care in the selection of those with whom they are required to work, providing suitable tools and machinery, etc., the servants must look to each other for protection in the performance of their respective duties.

The fireman can be regarded as the agent or vice principal of the receivers under no test which has ever been applied by the courts of this state, or elsewhere, so far as I have been able to discover. He was given no power to superintend, control or direct the plaintiff, which is the usual test, nor was he performing a duty the receivers owed to plaintiff other than such as they owe to every other employee in their service. Miller v. Railroad, 109 Mo. 350, and cases cited.

II. That plaintiff and the fireman were, in their general employment, working in different and distinct departments of the business of the receivers is unquestioned. That one employee-of a railroad company while engaged in the road department as a section hand, and another one while working in the operating department, as an engineer or conductor, are not fellow servants, within the rule exempting the company from liability for the injury inflicted to one by the negligence of another, has been declared by this court in several recent cases. Dixon v. Railroad, 109 Mo. 419; Schlereth v. Railroad, 115 Mo. 87; Sullivan v. Railroad, 97 Mo. 117; Parker v. Railroad, 109 Mo. 362.

In none of these cases was an attempt made to establish a rule which could be applied to all cases. Each case was made to depend upon its own facts. It was said in the Dixon case, supra: “We will not essay to establish any definition of fellow service to enlighten (or increase) the difficulties of this branch of the law, but shall merely deal with the facts before us.”

In most cases the relation of the servants can easily be determined under the rule declared upon the facts in that case. The injured quarryman and the negligent engineer were held not to be fellow servants for the reason that “each looked to a different individual as the master’s representative for direction in his work and had no practical connection' with the supervisor who guided and supervised the acts and conduct of the other.”

Under the facts in the Parker case, supra (p. 409), Black, J.,'says: “The real and only point of distinction, it seems to us, arises out of the fact that the servants are so associated and related in the performance of their work that they can observe and influence each other’s conduct, and report any delinquency to a correcting power.”

The same judge in the subsequent case of Relyea v. Railroad, 112 Mo., 86, in referring to the cases above cited, states the rule thus: “These cases reject the rule of exemption as it is often broadly stated, though less frequently applied, that all are co-servants who are engaged by the same master in carrying on some general enterprise, no matter how different and disconnected the work may be. They assert the more reasonable and just rule, that they are co-servants who are so related and associated in their work that they can observe and have an influence over each -other’s conduct and report delinquencies to a common correcting power; and they are not co-servants who are engaged in different and distinct departments of work. They show that track walkers and track repairers and persons operating a stone crusher are not fellow servants with those engaged in operating trains.”

In the case of Railroad v. Moranda, 108 Ill. 576, which is one of the leading cases on the doctrine that servants are not necessarily co-servants, within the rule exempting the master from liability, simply because they are engaged in some part of the work of the common master, it is said: “To constitute servants of the same master 'fellow servants,’ within the rule respondeat superior, it is not enough they are engaged in doing-parts of some work, or in the promotion of some enterprise carried on by the master, not requiring cooperation nor bringing the servants together or into such personal relations that they can exercise an influence upon each other * * *, but it is essential that they shall be, at the time of the injury, directly cooperating with each other in the particular business in hand, or that their usual duties shall bring them into habitual consociation, so that they may exercise an influence upon each other promotive of proper caution.” See, also, same case reported in 93 Ill. 302.

From these rules, and the reasons for them, it is manifest that the mere general employment in different departments of service, and under different immediate heads, are not absolute tests of the relationship the servants of the departments bear to each other as it affects the liability or exemption of the master. If the servants were, at the time of the injury, actually cooperating together in the particular business in hand, they would be fellow servants for the time being, notwithstanding they may have been regularly employed, and their ordinary duties required them to work in different departments. Indeed, while cooperating in the same work the servant would be engaged in the department in which the work was required, and under the direction of the agent of the master in charge of it.' It might be, and doubtless often is, the case that the duties in distinct departments are so blended as to make it difficult, if not impossible, to determine in which the work is done. Should the employees of a freight train be engaged in assisting trackmen in unloading a carload of ties, or rails, the two sets of men could not but be regarded as fellow servants in respect to the particular work in which they are engaged, though their general employment was in different departments and under different superintendents, and though the work may have been directed by one or both. They would have equal opportunity of observing and influencing the conduct of each other as though their general work brought them into habitual association.

The principle, we think, was involved and necessarily decided, in the case of Murray v. Railroad, 98 Mo. 574. Murray, who was in the employ of a cable railway company as a watchman at a street car crossing, was killed by the negligence of the gripman in the management of a train operated by the same company. One of the duties of deceased was to keep watch of the cars as they approached the curve, and to give signals to the gripman, so that only one train should pass the curve at a time. "While in the performance.of this duty he was killed. It was held that the two were fellow servants. It was said: “The negligent gripman and the deceased were both employed in operating the car, one from the ear and the other from his station on the ground. They were engaged in the same department of work, and their common business was such that one could exercise a preventative care over the other. They were evidently servants employed in the same common employment.” The flagman performed two duties for his employer, one of which was to guard the crossing and prevent injuries to persons crossing the tracks, the other to signal approaching cars to stop so that they would not pass each other on the curve. In the latter duty he cooperated with the gripman in the management of the cars. While performing that duty he was held to have been a fellow servant with the gripman. In the discharge of his several duties he might well have been under distinct individuals as the master’s representative for direction in his work.

Now it seems to me perfectly clear that in the act of the fireman, which resulted in the injury to plaintiff, the two servants were cooperating together. In respect to the performance of the act a duty devolved upon each. One was required to deliver, and the other to receive, the message. Though the respective duties were very simple, that fact did not change the relationship of those performing it. Not only that, but the evidence shows it was one of the ordinary duties of the service often performed. Each understood, by signals from the other, what was required of him. On that subject the plaintiff testified:

“By Mr. Walter: State what occurred there and what you saw. A. I saw this man, the fireman, had this message in his hand before he got to me.
Q. You saw the fireman with the message in his hand? A. Yes, sir; I watched him before he got to me to throw it, and he didn’t do it until he got to me, or in about six feet of me. I didn’t know anything then, he throwed it and it hit me.”
Upon cross-examination, after having explained the ordinary manner of sending out messages to the section men at work upon the line of the road, and that upon the day in question, as the train approached, the plaintiff got out of the way of it by stepping down the embankment about four feet from the track, on the west side. His cross-examination proceeded as follows:
Q. Was that the fireman’s side? A. Yes, sir.
Q. You watched to see that he had a message? A. Yes, sir.
“Q. Did you motion for him to drop it?' A. Yes, sir.
“Q. He got opposite you and then dropped it? A. He was very close, he was very near me.
UQ. The train was in motion? A. Yes, sir, I think it was.
tlQ. Just show the jury how he delivered it? A. Well, he was coming toward me with the message in his hand.
“Q. In which hand did he have it? A. I don’t recollect. I suppose more than likely it was in his left hand. He was coming toward me, and when he got very near me, about six or eight feet of me, he just pitched it that way (indicating).”

It appears further that the duty of delivering the message was required by the roadmaster who was the immediate superintendent of plaintiff. The duty of each pertained to the road department. Each was acting under the same directing power, and, as to the business in hand, they were cooperating.

Under these circumstances they were fellow servants within the rule respondeat stiperior. Judgment reversed.

Black, O. J., Gantt and Sherwood, JJ., concur. Brace, Barclay and Burgess, JJ., dissent.

Per Curiam.

On rehearing: Gantt, Sherwood and Eobinson, JJ., concurring in the foregoing opinion of Macearlane, J., handed down in banc on the twenty-second day of December, 1894, the judgment of the circuit court is reversed in accordance therewith.

Brace, O. J., Barclay and Burgess, JJ., dissenting.

Barclay, J.

( dissenting). — This case is remarkable in several respects. It has had four hearings since it came into the court. First, the circuit judgment in favor of plaintiff was affirmed, all the judges of the first division concurring (24 S. W. Rep. 746). On motion for rehearing, the cause was transferred to court in banc where the judgment was again affirmed (28 S. W. Rep. 753), all concurring except Judges Gantt and Sherwood. Since then there have been two more hearings by the court in banc. On each occasion a judgment of reversal has been rendered, for the reasons given by our learned associate, Judge Macearlane (28 S. W. Rep. 979). We have always dissented from such a result, and dissent again as the case comes to its close.

The suit is remarkable from another point of view. It is the first judgment in many years, pronounced by a majority of this court, which seems to undermine the important proposition, in the modern Missouri , law of master and servant, that the duty to direct the work is a personal duty of the master.

In applying the British rule exempting the master from liability to one servant for negligence of another engaged in the same work, the supreme court has often declared that certain duties are personal to the master, and that all persons, set by the master to perform those duties, represented him, irrespective of their rank or association in the service.

The duty to use care to provide reasonably safe appliances and machinery for the work has been held a personal duty, in many decisions of which we mention only two, as types of others. Hall v. Railroad (1881) 74 Mo. 298; Coontz v. Railroad (1894) 121 Mo. 652.

Another personal duty is the duty of direction, according to former decisions, referred to further along.

A railroad can not be safely managed without regulations to govern the action of the bodies of men required to carry on its business. Hence it has been often held (before this case came into the court) that it is the master’s personal duty to be careful to prescribe and enforce reasonable regulations or rules, and also to use ordinary! care in directing the work through foremen and others intrusted with the master’s duty of command.

From the' application of these principles in this state it has resulted that where one servant has been injured by negligence of another, placed over him to direct his work, the superior (in so far as he exercised the master’s duty of direction) has been held no fellow servant of the injured party.

That holding has distinguished the law of Missouri from that of some other states, where superior servants are held to be fellow servants of those, placed under their control, even when the former stand in the master’s place as to the latter.

A part of the duty of direction requires ordinary care in giving necessary orders for the business. An order must reach the employee who is to follow it before it can be justly said to become an order for him. In the act of delivering or communicating an order the duty to exercise care rests upon the master. Those whom he may delegate to perform that duty stand in his place, just as all employees do in respect of the duty of maintaining reasonably safe and sufficient machinery used in the master’s service.

These principles apply to the facts now before us.

There is positive proof that for years the practice prevailed to deliver written or telegraphic orders to the section foremen (while engaged at work along the line) through the hands of employees on trains passing the points where the foremen were working. This practice was so general, and had been so long continued, that it might fairly be found that the master was chargeable with knowledge of it. Barry v. Railroad (1889), 98 Mo. 62 (11 S.W. Rep. 308). The proof, however, goes further than that. It shows that the practice was part of the method or system adopted by the road master himself for imparting orders to the subordinate foremen under his direction.

This system of communicating with the foremen did not, however, include the practice of tying coal or dangerous substances to the orders. The usual practice was, as the train approached the man for whom the paper message was intended, to wave the paper in the air to attract his attention, and then to drop the paper as the train passed him. Sometimes the paper was tied by a string to a stick to prevent its being blown away. But on no occasion before (according to plaintiff’s account) had a paper order ever' been delivered, tied fast to a hard substance, such as the piece of coal on the occasion out of which this action grows.

The question is, on these facts, whether the personal duty to give orders includes the duty to use reasonable care in delivering the orders to the person for whom they are intended. We answer emphatically, but with due respect, that it is.

It matters not whether the fireman who threw the order be considered, as belonging in the transportation, or in the construction, department of the railroad service. ■ The roadmaster himself in sending the order was^a mere mouthpiece or agency of the company, or, in this case, of the receivers.

Anyone to whom the duty of delivery is assigned represents the master in communicating the order. This certainly must be so, if the duty to direct the work, and in so doing to give orders, is really held to be a personal duty of the master.

The fireman and the plaintiff (as section foreman) were, no doubt, cooperating in delivering the message and in receiving it. But it does not follow from that fact that the master is not responsible for the act of either. That depends on the nature of the act done by each. If the act now in question (namely, the delivery of the message) was one which devolved on the master, as such, to perform, then the master is liable for carelessness in the delivery as he would be for damage arising from the nondelivery of the order.

Yet four of our colleagues hold that in this case the employer or master was not negligent, and that negligence in the delivery of an order is negligence of a fellow servant. The line of reasoning followed to reach that result, if consistently applied, would place our law in regard to master and servant in the condition indicated by the case of McDermott v. Railroad (1860), 30 Mo. 115, in which the chief engineer of the railroad and every employee of lesser rank were held fellow servants, and the company was, therefore, held not liable for injury to a brakeman at the fall of the Gasconade bridge, caused by its defective construction.

But such an application of the rule in regard to fellow servants was discarded by the judgments in Gibson v. Railroad (1870), 46 Mo. 163, and Lewis v. Railroad (1875), 59 Mo. 495, as the learned judge who wrote the McDermott case plainly conceded in Long v. Railroad (1877), 65 Mo. 225.

The same venerable arguments used in the McDermott case, and repeated in the case at bar, would relieve the master of liability for negligence in respect of maintaining reasonably safe machinery, just as he is exonerated in this case from responsibility for negligence in the direction of the work. Eor if the master’s duty is performed by simply formulating orders, and no duty to use care in delivering them exists, why does the master not satisfy the law by merely providing sound appliances, without being liable for negligence inputting them together into the great plant which constitutes a railway line? Yet this court has often held that the humblest laborer who . drives a spike in the track to keep a rail in its' place is in that act performing part of a personal duty of the master, and that the master is liable, on a proper showing, if that track is defectively constructed. Lewis v. Railroad (1875), 59 Mo. 495; Henry v. Railroad (1891), 109 Mo. 488 (19 S. W. Rep. 239); Swadley v. Railroad (1893); 118 Mo. 268 (24 S. W. Rep. 140).

In the Lewis case (in which a brakeman was injured by stepping into a hole by the side of the track, in consequence of negligence on the part of the section men in the care of the roadbed) the theory of personal duty of the master was stated as follows:

“It is true, in one sense, the section foreman whose duty it was to superintend the track and keep it clear and safe, was a fellow servant, as all are to a certain extent fellow servants who are engaged in the same business or enterprise; but he represented the company in the line of his duty — he was the company in that regard — and his negligence was the company’s negligence in a matter in which it owed a duty and obligation to its servants.” 59 Mo. 508.

So say we in the present case. If it was the personal duty of defendants to give orders to the plaintiff, as section foreman, it matters not what servant the company or the receivers selected to perform that duty. In delivering the order he was doing the act of the masters.

But our four learned colleagues now repudiate this theory, by the statement that “the service required of the fireman was that of a servant, which any messenger could have performed; and the manner of its delivery did not pertain to the duty the receivers owed to plaintiff. They owed him the duty only of using reasonable care to select a competent and careful messenger,” etc. This means, in substance, that if the orders for the work afe in themselves correct, no obligation of care in delivering them (to the workmen for whom they are prepared) rests upon the master.

This idea of the law of master and servant prevails in some states, but it has been some years since it received approval by a majority of this court. On the contrary it has been frequently held, of late, that the negligent acts of subordinates were the acts of the master, in so far as those acts were a manifestation of, and referable to, the master’s authority to direct the work in hand. Those exercising the power of direction have been held to stand in the master’s place as to those under their control, in so far as the former were authorized to perform any duty of the master toward their subordinates. These principles have been distinctly declared in Stephens v. Railroad (1888), 96 Mo. 207 (9 S. W. Rep. 589); Miller v. Railroad (1891), 109 Mo. 350 (19 S. W. Rep. 58); and in Russ v. Railroad (1892), 112 Mo. 45 (20 S. W. Rep. 472) — not to mention other recent cases.

Now we are told that it is no part of the master’s duty to use reasonable care in transmitting an order to a section foreman to whom the master is bound to give proper orders. To quote the precise terms of the ruling: “The injury did not result from the nature of the message, or from a failure to transmit it.”

Why, let us ask, is the master liable for “a failure to transmit it”? If the delivery is not part of the master’s personal duty, and the order is, in itself, correct, whence springs any liability for the failure to transmit? Nondelivery would be the act of a mere servant as fully as negligent delivery (of which complaint is made in the present case). Yet our brethren intimate that for the former the master is liable; but that he is not liable for the latter. Why this distinction? We confess that it seems to us almost too fragile to discuss. It partakes somewhat of the nature of the distinction on which the New York judgment of Crispin v. Babbitt (1880), 81 N. Y. 516, is founded, from which our brother Maoearlane has approvingly quoted.

In that case a general manager, in full charge of iron works, started an engine, while plaintiff with others was lifting the fly wheel from it. A majority of the court of appeals held that, though the manager was a vice principal, as to superintending the establishment, he was merely a fellow servant of plaintiff when he undertook to start the engine; and that, consequently, the master was not liable for his act. It is not surprising that three of the seven judges of the court dissented from that judgment.

If the act which the master’s representative (the manager) performed in that case was one which fell within his authority to direct and control, what difference, in principle, could there be (with reference to the liability of the master) whether the manager performed the act himself or directed another to perform it? In either case the act came within his directing power. He was still the manager when he started the engine.

According to our learned friendss in the case in hand, an order, good in itself, if started toward an employee, fulfills the duty of the master, if it reaches him in any way.

The master, according to this doctrine, is not bound to cause the order to be carefully transmitted. His agent to deliver it may tie the order to a piece of coal, and hurl it at the employee to whom it is directed, and put out his eye in delivering the order, without liability on the part of the master.

To such a declaration of law our most emphatic and earnest protest is entered.

It is, with due respect, inconsistent to say that it is a personal duty of the master to use care in directing the enterprise he conducts, and then to add that he is not bound to reasonable care to see that the order (which the employee, needs for his direction) reaches the latter. The necessary order for the work is no order at all (as to the person who is to act upon it) until he is apprised of it.

Negligence in giving the order is no different in principle from negligence in the order itself. In either case there is a breach of the duty to use reasonable care in directing the work.

in Smith v. Railroad (1887), 92 Mo. 359 (4 S. W. Rep. 129), the defendant was held liable for a negligent verbal order by a train dispatcher to a locomotive engineer,, although the printed rules of the company forbade the movement of the engine without written orders. In that case it was said that “when he [the train dispatcher] determined that he could not give written orders, it was the determination of the company, and when he gave the orders verbally, as he did to meet the emergency, it was the company speaking.” 92 Mo. 372.

Whether the negligence be in the order itself (as in the Smith case, just mentioned, and in Hunn v. Railroad (1889), 78 Mich. 513, 44 N. W. Rep. 502), or in the omission to communicate a necessary order (as in Chicago, etc., R. R. Co. v. McLallen (1876), 84 Ill. 109; Sheehan v. Railroad (1883), 91 N. Y. 332; Darrigan v. Railroad (1884), 52 Conn. 285), or in communicating the necessary order carelessly (as in Madden’s Adm’r, v. Railroad (1886), 28 W. Va. 610, in East Tenn, etc., R. R. Co. v. DeArmond (1887), 86 Tenn. 73, and in the case at bar), the same duty is alike violated — the duty to use ordinary care in the direction <Jf the work, with reference to the safety of the employees engaged in performing it. Part of that duty requires the enforcement of needful rules (which are in their nature nothing more than standing orders) for the conduct of the business. Reagan v. Railroad (1887), 93 Mo. 348.

In that connection it has been held that it is not enough to establish a needed rule; it is also part of the master’s duty to bring it to the notice of the employees and to enforce it. Barry v. Railroad (1889), 98 Mo. 62 (11 S. W. Rep. 308); Whittaker v. Canal Co. (1891), 126 N. Y. 544 (27 N. E. Rep. 1042); Northern Pacific R. R. Co. v. Nickels (1892), 4 U. S. App. 369 (50 Fed. Rep. 718).

This principle we think applies to the matter of orders that govern the daily routine of the master’s service. The duty to use care to bring the order to the notice of the person required to act upon it is as much an essential part of the duty of careful direction as is the promulgation and enforcement of rules, after they have been adopted by the master to govern the action of his employees.

For these reasons we dissent from the judgment that now turns the plaintiff finally out of court as having no cause of action.

We agree with the learned trial judge, who held that the facts tend to make out a case, under the law of Missouri.

II. In view of the result announced by a majority of the court, it is unnecessary to discuss other points of objection to the circuit judgment. They were held untenable on the first hearing of the case (24 S. W. Rep. 746), and not having been mentioned by our learned brother Macfarlane, we also forbear taking them up.

We vote for affirmance of the judgment, and dissent from any different result.

Brace, C. J., and Burgess, J., concur in this opinion.  