Grube v. Missouri Pac. Ry. Co.

• Decision Date: 10 June 1889
• Citation: 98 Mo. 330,11 S.W. 736
• Parties: GRUBE v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

11 S.W. 736

98 Mo. 330

GRUBE v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

June 10, 1889.

MUNICIPAL ORDINANCES — INJURIES TO SERVANTS — INSTRUCTIONS.

1. Municipal ordinances regulating the rate of speed of trains, and requiring certain signals to be displayed on moving trains at night, within the limits of the municipality, apply to the private switch-yards of a railroad company, situated within those limits.

2. In an action against a railroad company for the death of plaintiff's husband while in defendant's employ, where the death is alleged to have resulted from the negligence of another employé of defendant, evidence that such employé had the reputation of being careless in his work, and of specific acts of negligence by him, of which defendant knew, is admissible to show negligence on the part of defendant in employing and retaining him.

3. An objection that an instruction ignores the question of negligence on the part of deceased and his knowledge of the other employé's incompetency is not sustained where such instruction requires the jury to find that deceased was injured "without negligence on his part directly contributing thereto," and there are other instructions that plaintiff cannot recover if deceased was guilty of negligence, or if he knew, or by the use of reasonable care might have known, that the other employé was negligent or incompetent, and thereafter remained in defendant's employ.

On rehearing. For former opinion, see 10 S. W. Rep. 185.

T. J. Portis and Adams & Bowles, for appellant. Prosser Ray and L. E. Wyne, for respondent.

BLACK, J.

The plaintiff is the widow of Frank T. Grube. She brought this suit to recover damages for the death of her husband, who was injured in the defendant's switch-yards at Kansas City on the 20th November, 1883, and from which injuries he died two or three days later. There was a verdict and judgment for plaintiff, and the defendant appealed.

There are some facts set out in the petition, disclosed by the evidence on both sides, and about which there is no dispute, and they are, in substance, these: The accident occurred between half past 6 and 7 o'clock in the afternoon, on side track No. 6. It was dark at that time. The switch tracks run in an east and west direction, and No. 6 is a short track, just to the north of a main switch track. The water plug and coal chutes are on the west end of No. 6. It was the duty of the switch crews to go on this track in the evening, take on coal and water and oil, and prepare their engines for the night-work. At the time in question there were three engines on the track preparing for the night-work, and waiting for orders from the yardmaster. These engines all fronted east; 806 stood furthest west, 804 stood six to twelve feet east, 801 stood three to six feet east of that, and a few feet further east there were three cars standing on the same track. Grube, the deceased, belonged to what was called the "West-End Crew." He was sitting on the pilot-beam of his engine, it being 804, which was the middle of the three engines as they stood on the track. At this time O'Neal, who was the foreman of another crew, known as the "East-End Crew," backed a train of from 18 to 35 cars in on the east end of track No. 6. He ran the train against the three cars, driving them on engine 801, which was forced against 804, and the whole in turn against 806, driving it backwards some distance. Grube was caught and injured in the collision, while sitting on the pilot-beam of engine 804. It may be stated here that he was at his proper place.

The petition sets out two sections of an ordinance of the City of Kansas whereby it is enacted: "Sec. 5. No conductor, engineer, fireman, brakeman, or other person shall move, or cause or allow to be moved, any locomotive, tender, or car within the city limits at a greater rate of speed than six miles per hour, under a penalty of not less than twenty-five dollars, nor more than $500." "Sec. 10. No conductor, engineer, fireman, brakeman, or other person in charge of any locomotive tender, car, or train of cars shall run, or move, or cause or allow to be run or moved, for any purpose whatever, within this city, between sunset and sunrise, any such locomotive, tender, car, or train of cars without having at least one lamp, head-light, or lantern conspicuously placed in front of the same, facing the direction in which the same may be moving, whether running forward or backward, under a penalty of not less than $25, or more than $500." The petition then counts upon a violation of both sections of the ordinance by O'Neal, and alleges that he was an incompetent foreman, and charges negligence on the part of the defendant in employing and retaining him in its service. The further evidence for the plaintiff tends to show that O'Neal ran his train in on the side track, and against the three cars and the engines, at a rate of speed from 9 to 11 miles per hour; that he had no one on the west end of the train, or near enough to it to receive danger signals from persons at or about the coal chutes. The proof is clear and undisputed that there was no light on that end of the train which came in on the side track. For the defendant, O'Neal testified that his train was moving at the rate of about three miles per hour; that he had a man with a lantern at the west end of it, who was on the ground, and a passing train on another of the tracks obstructed his view, so that he could not communicate with his engine; that this man failed to make the coupling as the cars came in contact, and hence the collision. There is evidence tending to show that O'Neal was a reckless and careless foreman, and known to be such by his superior officers; and, on the other hand, there is evidence to the effect that he was a careful and prudent man, and so reputed to be.

The case was placed before the jury on the theory of the petition, namely, that a violation of the ordinance either in moving the train at a greater rate of speed than six miles per hour, or in failing to have a head-light, lamp, or lantern placed in front of the same, facing...