Parker v. The Hannibal & St. Joseph Railroad Company

Decision Date28 March 1892
PartiesParker v. The Hannibal & St. Joseph Railroad Company, Appellant
CourtMissouri Supreme Court

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Reversed and remanded.

Strong & Mosman for appellant.

(1) The plaintiff failed to establish by evidence that the servants of the defendant running and managing the construction train failed to warn the men at work on its track of the approach of the train, as charged in the petition. The only evidence produced was the negative statement of men who were not expecting a train, and whose attention was engrossed in their labor. It was not sufficient to entitle the plaintiff to go to the jury. Cathcart v. Railroad, 19 Mo.App. 118; Thompson on Trials, sec. 391, p. 349. (2) Whatever may be the weight accorded to this evidence, it was entirely overthrown by the evidence of the defendant. Kinzey v. Railroad, 76 Mo. 638; Bohan v. Railroad, 61 Wis. 391; Culhane v. Railroad, 60 N.Y. 137; Railroad v. Manley, 58 Ill. 309. (3) As to the charge of negligence contained in the petition, in respect to the train being run backwards, there is not the slightest evidence to sustain the charge. It appears that the train was moving at its usual speed, with men stationed on the forward end of the leading car to warn persons from the track. A railway company certainly cannot, as to its own employes, be held negligent in backing a train over its track under such circumstances; and in this case this very train had been run backwards over this very track, at this same hour, to plaintiff's knowledge, daily for two weeks. (4) There was a total failure of evidence tending to show that there was any negligence or recklessness in respect to the rate of speed at which the train was moving. None of plaintiff's witnesses were shown to be competent to testify on that point. A railroad company has the right, as regards others than passengers, to fix its own rate of speed in the absence of any law or ordinance limiting it. Maher v. Railroad, 64 Mo. 267; Stevens v. Railroad, 86 Mo. 226; Goodwin v. Railroad, 75 Mo. 75; Railroad v. Huntley, 38 Mich. 537. (5) The plaintiff was guilty of such contributory negligence as barred his right to recover. Price v. Railroad, 77 Mo. 508; Steffen v. Mayor, 96 Mo. 420; Waldhier v. Railroad, 87 Mo. 37; Renfro v. Railroad, 86 Mo. 302; Gleason v. Excelsior Co., 94 Mo. 205; Spiva v. Railroad, 88 Mo. 73, 74. (6) It was error for the court to refuse instruction, numbered 5, asked by the defendant, to the effect that if deceased came to his death by reason of the negligence of defendant's employes in charge of the rock or construction train, in running and managing the same, the verdict should be for defendant. Blessing v. Railroad, 77 Mo. 412; Shearman & Redfield on Negligence, secs. 225, 234, 235, 236, 241; Bishop on Non-Contractual Law, secs. 662, 669, 673; Evans v. Railroad, 62 Mo. 49; Gibson v. Railroad, 46 Mo. 169; McDermott v. Railroad, 30 Mo. 115; Marshall v. Schricker, 63 Mo. 311; Rohback v. Railroad, 43 Mo. 187.

T. T. Crittenden, E. H. Stiles and J. F. Waters for respondent.

(1) Plaintiff's husband, a section hand, was not a fellow-servant, within the rule with the engineer of the train which killed him, for the reason that they were in different departments of the service. Railroad v. Weaver, 35 Kan. 412; Garrety v. Railroad, 25 F. 258; Calvin v. Railroad, 23 S.C. 536; Sullivan v. Railroad, 97 Mo. 113. Nor can the rule be held otherwise without directly overruling the case last cited. (2) The foregoing cases are almost exactly in point. As bearing, however, on the point and to the same conclusion, we cite the following: A conductor of a train is not a fellow-servant with the engineer or fireman. Railroad v. Ross, 112 U.S. A conductor of one train is not a fellow-servant with the brakeman of another train. Au, Adm'x, v. Railroad, 29 F. 72. A conductor of a railroad train is not a fellow-servant of the trainmen. Moon's Adm'r v. Railroad, 78 Va. 745; S. C., 49 Am. Rep. 401." A conductor of a material train is not a fellow-servant with a laborer on the train even in adjusting the switch." Coleman v. Railroad, 25 S.C. 446; S. C., 60 Am. Rep. 516. The conductor of a freight train is not a co-servant within the rule with the engineer of another train, and the defendant is liable where the accident was caused by the negligence of those in charge of the freight train. Railroad v. Ackley, 8 S.W. (Ky.) 691. The engineer of one freight train is not a co-servant within the rule with the conductor of another freight train through whose negligence a collision occurs, killing the engineer of the other train. Railroad v. Cavin's Adm'x, 9 Bush (Ky.) 559. "The brakeman and section foreman are not co-servants within the rule." Lewis v. Railroad, 59 Mo. 495. Section foreman and switchman are not such servants. Hall v. Railroad, 74 Mo. 298. Track laborer and fireman are not such fellow-servants. Coles v. Railroad, 84 N.C. 309. Brakeman and roadmaster are not such fellow-servants. Railroad v. Moore, 39 Kan. 197. Night watchman and foreman of crew are not such fellow-servants. 110 Ill. 383. Car inspector and brakeman are not. Condon v. Railroad, 78 Mo. 567; Long v. Railroad, 65 Mo. 225. Foreman of car repairs is not a fellow-servant with a workman under him. Moore v. Railroad, 85 Mo. 588. Section foreman and the workman under him are not such fellow-servants. McDermott v. Railroad, 87 Mo. 285, following Moore v. Railroad, supra. Hostler of engine roundhouse and person employed therein are not fellow-servants. Dayharsh v. Railroad, 15 S.W. 554.

Gantt, J. Sherwood, P. J. and Macfarlane, J., concur. Black, J., in a separate opinion. Barclay, Brace and Thomas, JJ., dissent.

OPINION

IN BANC.

Gantt J.

The plaintiff, as the widow of William C. Parker, commenced this action December 2, 1886, against the defendant to recover damages sustained by her by reason of the death of her husband, who was killed by a construction train on defendant's track, near Randolph Bluff, on the twenty-sixth day of October, 1886.

Plaintiff's husband had been engaged as a section hand or track laborer for the defendant for about two years prior to his death. On the twenty-sixth of October, 1886, he was engaged at work on defendant's track at a place called Randolph Bluff with the rest of the section men, and had been working at that point every day for about two weeks prior to his death; the train which struck him was a construction train engaged in carrying rock from the rock crusher at Minnaville, five miles east of Randolph Bluff, to a point near the Bluff, and west of where the section men were working, for the purpose of ballasting the track and had been thus engaged daily for three months. The engine of the construction train pulled the cars after it going west, and returning east pushed the cars in front of it. It made the round trips past the place where the section men were at work upon the track daily, the last trip being about five o'clock in the afternoon, each day.

It was while this train was running eastward on the twenty-sixth of October, 1886, at five o'clock P. M., that it struck William Parker, plaintiff's husband, and killed him. From the evidence, there were about twenty-five passenger and freight trains running daily over that part of the track where Parker was killed, during the daytime.

The evidence discloses that at the time of the accident which resulted in Parker's death the train had discharged its stone, and was being run, caboose in front, eastward, to Minnaville; Parker was working on defendant's track, tamping some rock under the track, with his face to the east and back to the west. On the part of the plaintiff several witnesses testified, in a negative way, that the train made no signals, either by blowing the whistle or ringing the bell; that some one hundred and fifty yards west of the point where plaintiff's husband was at work there was a curve in defendant's track; that parallel with defendant's track was the Wabash railroad track, and distant at this point about nine feet, one from the other. On the part of the defendant there was much positive affirmative evidence that at a point some two thousand feet west of where Parker was killed the engineer blew three blasts of the whistle, as a signal that he was going to back over this track with his train.

There was also evidence that just at the time plaintiff's husband was struck and killed a freight train of forty-eight cars on the Wabash was running eastward by this place, making much noise. A number of witnesses were allowed without being qualified as experts or showing any familiarity with the speed of trains to testify that, in their opinion, the train was running thirty to thirty-five miles an hour and was racing with the Wabash train. On the part of defendant there was positive testimony that just west of the point where Parker was killed, there was a curve in the track, and that while going round this curve the engine blew four blasts of the whistle, two long and two short.

It appears from the evidence that on the east or front end of the construction train as it backed east two men were stationed, one with a flag; the train was running backwards at a rate variously estimated from fifteen to thirty-five miles per hour, at the time it struck Parker. From the point where Parker was at work the track could be seen westward a distance variously estimated by plaintiff's witnesses as being from one hundred and fifty yards to a quarter of a mile; that all the other men composing the gang of section men were west, and within sixty feet of the point where Parker was working, being between him and the approaching train, scattered...

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