Relyea v. The Kansas City, Fort Scott & Gulf Railroad Company
| Citation | 20 S.W. 480,112 Mo. 86 |
| Parties | Relyea, Appellant, v. The Kansas City, Fort Scott & Gulf Railroad Company |
| Decision Date | 14 November 1892 |
| Court | United States State Supreme Court of Missouri |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Affirmed.
Crittenden Stiles & Gilkeson and G. L. Jones for appellant.
(1) The court erred in sustaining defendant's demurrer to the evidence on the ground that plaintiff had failed to show that she had been legally divorced from her former husband, and hence, failed to show that she was the lawful widow of Johnson Relyea and as such entitled to maintain the suit. And in excluding the evidence offered to show that she had applied for and obtained a decree of divorce. Her marriage to Relyea being shown, the presumption of her eligibility at once arose, either by death of or divorce from her husband and the onus was on the defendant to prove the contrary. 1 Greenleaf's Evidence, secs. 35, 42; Best on Presumptions, secs. 49-136; 2 Wharton on Evidence, sec. 1297; Stewart on Marriage & Divorce, sec. 457; Blanchard v. Lambert, 43 Iowa 228; Hull v. Rawls, 27 Miss. 471; Klein v. Lauderman, 29 Mo. 259; Waddingham v. Waddingham, 21 Mo.App. 609. (2) The court erred in holding that the conductor in charge of said section of train number 54 was a fellow-servant with the fireman of train number 52, in such sense as to relieve the company from the negligence of said conductor in causing his train to be cut on a grade, and insecurely, and without anyone in charge, so leaving it, that it would naturally, and did, run down the grade and collide with the train on which was plaintiff's husband. Railroad v. Ross, 112 U.S. 337; Au, Adm'x, v. Railroad, 29 F. 72; Garrity v. Railroad, 25 F. 258; Moon's Adm'r v. Railroad, 78 Va. 745; S. C., 49 Am. Rep. 401; Railroad v. Ackley, 8 S.W. 691; Railroad v. Cavin's Adm'r, 9 Bush, 559; Railroad v. Brooks, 83 Ky. 129; Moore v. Railroad, 85 Mo. 588; Dick v. Railroad, 38 Ohio St. 389; Lewis v. Railroad, 59 Mo. 495; Calvin v. Railroad, 23 S.C. 526; Hall v. Railroad, 74 Mo. 298. (3) But independent of this question of fellow-servant there were two other distinct grounds for recovery stated in the petition, in respect to which abundant evidence was introduced, and upon which plaintiff was entitled to go to the jury. The first of which was that the division superintendent or officers of the company having charge of the trains was negligent in directing train number 52, on which plaintiff's husband was, to be run ahead of the schedule time without notifying the conductor of train number 54 of the same, and that train number 52 was so dangerously near. (4) Regardless of every other consideration the plaintiff was entitled to have her case go to the jury on the issue that the train, second section of train number 54, was insufficiently manned to do the work of cutting the train, sidetracking four of the cars, of securely staying and guarding the portion so cut, while the other portion was being sidetracked. Flike v. Railroad, 53 N.Y. 549; Booth v. Railroad, 73 N.Y. 38; Snow v. Railroad, 8 Allen, 441; Jones v. Cotton Mills, 82 Va. 140; Railroad v. Barber, 5 Ohio St. 541; Johnson v. Ashland Co., 37 N.W. 823. The case should have been submitted to the jury under proper instructions, and it was clearly erroneous for the court to refuse to do so, and to afterwards overrule the motion to set aside the nonsuit and order judgment against plaintiff.
Wallace Pratt, Frank Hagerman and I. P. Dana for respondent.
(1) The undisputed testimony shows that the collision was caused by the negligence of a brakeman on the first train. The latter was a fellow-servant with the deceased, who was fireman on the second train, and, therefore, respondent, the common master, was not liable for the latter's death resulting from the collision, and the court properly sustained the demurrer to the evidence. 1 Shearman & Redfield on Negligence [4 Ed.] sec. 224; Moore v. Railroad, 85 Mo. 594; McMaster v. Railroad, 4 S. Rep. 59; Randall v. Railroad, 109 U.S. 479; Howard v. Railroad, 24 Am. & Eng. R. R. Cases, 448; Hewitt v. Railroad, 31 Am. & Eng. R. R. Cases; Hayes v. Railroad, 3 Cush. 270; Harvey v. Railroad, 10 N.Y.S. 645. (2) Even if respondent is wrong in the foregoing statement of the cause of the collision, the trial court did not err in refusing to submit the case to the jury on any of the three charges of negligence, which alone of the seven contained in plaintiff's petition are urged upon this court by appellant as having any evidence to sustain them. First. There was no testimony showing that running the second train ahead of time was a negligent thing to do, or connecting that fact in any way with the cause of the collision. McDermott v. Railroad, 87 Mo. 285; Bowen v. Railroad, 95 Mo. 268; Stepp v. Railroad, 85 Mo. 229; Harlan v. Railroad, 65 Mo. 22; Brown v. Railroad, 20 Mo.App. 222. But, if the reverse was true, there is no testimony showing who was responsible for the negligence, and, in the absence of testimony on that point, it will be presumed to have been a fellow-servant with deceased. McGowan v. Railroad, 61 Mo. 528; Travers v. Railroad, 63 Mo. 421; Blessing v. Railroad, 77 Mo. 410; Murray v. Railroad, 98 Mo. 577; Ross v. Railroad, 58 N.Y. 217. Second. There was no testimony showing that the first train was not provided with a force of men sufficient to properly operate it. Even if there was negligence in that respect, deceased knew it and waived his right to complain thereof by remaining in defendant's service. Skipp v. Railroad, 5 Exch. 223; Railroad v. Barber, 5 Ohio St. 541. And the testimony shows something else to have been the proximate cause of the collision, and that must determine the question of liability in this case. Hayes v. Railroad, 3 Cush. 270; Stepp v. Railroad, 85 Mo. 229; Brown v. Railroad, 20 Mo.App. 222. Third. There is no testimony showing that the negligence of the conductor of the first train caused the collision, or that he was negligent in any way. But, even if he was negligent, plaintiff cannot recover, for he was a fellow-servant with her husband, a fireman on another train. Easton v. Railroad, 32 F. 895; Railroad v. Adams, 5 N.E. 187; McAndrews v. Burns, 39 N. J. L. 117; McMaster v. Railroad, 4 S. Rep. 59; Howard v. Railroad, 24 Am. & Eng. R. R. Cases, 448. (3) The testimony of plaintiff showed that she married Relyea at a time when she had a living husband, who was also living at the time of the trial. There is no presumption that she was divorced from the former husband, and, not being the lawful wife of Relyea, she could not recover. Revised Statutes, 1889, sec. 6842; Williams v. Williams, 63 Wis. 58; Ellis v. Ellis, 58 Iowa 720; May v. State, 4 Tex.App. 424; Hull v. State, 7 Tex.App. 593; Gorman v. State, 23 Tex. 646; Wharton on Evidence [3 Ed.] sec. 1297; Smith v. Smith, 5 Ohio St. 32; Wiseman v. Wiseman, 89 Ind. 479; Streeter v. Streeter, 43 Ill. 155.
Black, J. Brace and Thomas, JJ., dissent. Barclay, J., concurs except that he does not wish to be understood as approving the judgment in the Schaub case.
In Banc.
The plaintiff brought this suit as the widow of Johnson Relyea to recover damages because of the death of her husband, who received injuries while in the employ of the defendant, and from which injuries he died.
The trial court sustained a demurrer to the plaintiff's evidence, and she took a nonsuit with leave, etc.
In support of this ruling, it is insisted that plaintiff's husband received the injuries which caused his death by reason of the negligence of a fellow-servant, and for this reason the defendant is not liable.
The evidence produced by the plaintiff discloses the following facts: At the time of the accident, that part of the plaintiff's road extending from Thayer in a northwest direction for a distance of one hundred and thirty-eight miles to Springfield constituted a division. Two through freight trains, known as section 1 and section 2 of number 54, left Thayer for Springfield at two or three o'clock in the morning. Each of these trains had a conductor and two brakemen besides an engineer and fireman. They were followed by local freight train number 52, which had in charge of it a conductor, three brakemen, an engineer and a fireman. The plaintiff's husband was fireman on the engine of this train 52, which was the last of the three to leave Thayer. The distance from Thayer to a station called Burnham is forty-one miles, and it is four miles from there to the next station, called Willow Springs. From Burnham to the latter station there is a down grade for about half the way, and then an up grade to the switch at Willow Springs. Section 2 of train number 54 was in the rear of section 1, and had fourteen or fifteen cars when it reached Burnham. It took on four more cars at that place. When it reached Willow Springs the conductor concluded to drop four cars on the switch, because the train was too heavy to haul over the up grade from there to Sterling, the next station; and to that end the engine and four forward cars were uncoupled, leaving the fourteen cars standing on the main track. These fourteen cars ran back of their own momentum towards Burnham, and collided with train 52, which had in the meantime left that station for Willow Springs. It was in this collision that plaintiff's husband received the injuries of which he died.
Frank Shea was the conductor, Austin the head and Short the hind brakeman on section 2 of train 54. The plaintiff called Shea and Austin as witnesses, and they are the only witnesses who have any knowledge of what occurred at Willow Springs. Shea the conductor, says when he reached Willow Springs with his train he directed Short, the rear brakeman, to cut out four cars; that Short went to assist the engineer...
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