Browning v. Wabash Western Ry. Co.

• Decision Date: 09 July 1894
• Citation: 27 S.W. 644
• Parties: BROWNING v. WABASH WESTERN RY. CO.
• Court: Missouri Supreme Court

27 S.W. 644

BROWNING v. WABASH WESTERN RY. CO.

Supreme Court of Missouri.

July 9, 1894.

DEATH OF EMPLOYE — NEGLIGENCE — FELLOW SERVANTS — DAMAGES.

1. Plaintiff's husband, a locomotive engineer, while on duty, was killed by a collision with some loose freight cars which escaped from a side track in circumstances described in the opinion, which it is held tend to show negligence of defendant in removing the brake staffs from certain of the cars, and in other particulars.

2. It is the personal duty of an employer to use ordinary care that the machinery necessary to conduct his business is maintained in a reasonably safe condition for use. The delegation of that duty to subordinates does not bring the latter into the relation of fellow servants, within the rule of exception as to employés injured by reason of a breach of that duty.

3. The master must use reasonable care not to subject his employé to an extraordinary risk in the service, unknown to the employé.

4. When an employé sustains injury by the combined negligence of a fellow servant and of the master, the latter cannot, on that ground alone, avoid liability.

5. Where an injury may be reasonably ascribed to a negligent act as a moving cause, the intervention of another negligent agent, precipitating the calamity, will not be held to break the causal connection between the negligence and the damage, where the later intervening act was induced by the first act of negligence, and designed to avert its consequences.

6. In an action by a widow, under section 4427, Rev. St. 1889, for the death of her husband, an instruction to assess her damages at such sum as would be "a fair and just compensation to her for the loss of her husband, not exceeding $5,000," is not erroneous in its general scope; and, where no more definite instruction is asked by the losing party, it does not constitute reversible error.

7. The trial court is not required, in a civil case, to instruct on all questions, whether suggested or not.

(Syllabus by the Judge.)

In banc. Appeal from circuit court, Chariton county; G. D. Burgess, Judge.

Action by Louise Browning against the Wabash Western Railway Company. Judgment for plaintiff. From a judgment in division affirming same (24 S. W. 731), defendant appeals. Affirmed.

This is an action to recover statutory damages on account of the death of plaintiff's husband, ascribable, as she charges, to negligence of defendant, in particulars which will appear later. The pleadings need not be detailed. They made certain issues, hereafter shown, which were submitted for trial before Judge Burgess and a jury. Plaintiff is the widow of Joseph Browning, a locomotive engineer, who was killed while in defendant's service. At the time of his death, he was 28 years old, had always been of good health, and was earning, on an average, $150 per month. Bridgeton is a station on the Wabash Railroad, 16 miles west of St. Louis. About one mile east of Bridgeton is Graham station. There is a depression in the railway between the two stations, somewhat nearer to Graham. The grade is a descending one from each of the stations to this point of depression. At Bridgeton there are three tracks, — the main track and two sidings. The two sidings are both south of the main track. The outer one is designated as the "house" or back track; the inner, as the "passing" track. An automatic switch connects the passing and main tracks, and cars can move from the passing to the main track, the switch being set by the mere movement of the cars, while the house and passing tracks are connected by a stub switch that is, one which is not set by the movement of the cars, but must be put in place by hand before cars can pass over it from one track to the other. On the 13th of July, 1888 (the day before the accident), Conductor Nolan, by direction of the division road master, left 11 cars loaded with steel rails on the house track at Bridgeton. Some of these cars were 28 feet long, and some of them 30; the rails were 30 feet long. Previous to loading the cars, and because they were to be so loaded, the brake staffs had been removed from them, by order of the division road master, under whose supervision the loading was done. The brakes could not be used when the brake staffs were off. When the cars were put on the side track, they were made fast by blocks and obstructions under the wheels, as was the custom with cars having no brakes. There they remained safely until the following night. On the 14th of July, Conductor Nolan received an order from defendant's train dispatcher, directing him to go from Ferguson to Bridgeton, after the working hours of that day, and take these 11 cars from that place to Moberly. He left Ferguson, with his work train, just ahead of the west-bound passenger train, No. 27, of which plaintiff's husband was engineer. Nolan knew that Browning's train was to follow close behind him, and, in the regular course of things, would reach Bridgeton but a few minutes after him. When Nolan reached Bridgeton, he left his caboose on the passing track, and, with the engine and train crew, set out to couple the cars on the house track. He says that when he left the cars of steel there, the day before, they were all coupled together; but he did not, nor did any of his crew, make examination to see if they were still coupled, before attempting to move them. In addition to the cars of steel, there were some coal and box cars on the house track, of which one, — a box car, — was east of the steel cars, and the remainder west. The engine was backed in at the west end of the house track, and coupled to the box and coal cars. Then the engine, with the cars attached, was backed against the steel cars, and coupled to the nearest of them. There was something of a shock incident to this. The steel cars were pushed backward. Nor did they all stop when the engine stopped, and they had taken up the slack in the couplings. Nine of them continued their movement eastward, not being coupled to their fellows, and therefore not held by the engine. Slowly they began to run, but the grade was downward, and their speed accelerated with each revolution of the wheels. Nolan and his men tried to stop them by throwing under the wheels such obstructions as they found at hand, but to no purpose. Just east of these cars, on the same track, stood a box car, loaded with ties. As the cars of steel struck this, it, too, was set in motion. Left now to themselves, these cars would have run down to the east end of the house track. There they must have stopped, because they could get no further. Nothing more serious could then have ensued than the derailment of one, or possibly two, of these cars; a derailment that could not have seriously injured the cars, and that would have left the main track free for the passage of trains. Instead of letting the cars thus bring themselves to a stop, Nolan threw the stub switch, and so opened a clear way for the cars to the passing track; thence, through the automatic switch, to the main track, and along the latter, over a descending grade, towards Graham station. Nolan, in explanation of this act, says: "I did it, as I supposed the cars would be stopped before they got on the main track, and therefore I threw the stub switch. If I had not turned that, the cars would have run off the track, and would not have got on the passing or main track. But I supposed we had them under control, and they would be stopped." Browning was a few minutes late. His train had the right of way. No sooner had Nolan's cars passed out upon the main track than Browning's train showed its headlight at the west end of the Graham switch. One of Nolan's brakemen mounted the box car, and endeavored to set the brake, but it could not, and did not, hold against the great weight crowding down upon it. The train from the east and the truant cars from the west were now moving upon each other, and each upon a down grade, at the rate of 20 and 18 miles an hour, respectively. It was a starlight night, about 9:30 o'clock. There was no moon. The catastrophe occurred in a few moments after the wild cars became visible from Browning's engine as they came within range of its headlight. The brakeman, Mr. J. W. Dunn, whose courage and fidelity to duty in that trying hour demand a passing, word of praise, stuck to his post, signaling with his lantern for the coming train to stop, and continued to do so, without taking thought for his own safety, until within three car lengths of the point of collision, when he sprang off and escaped unhurt. The two great moving masses met near the bottom of the incline, and Browning was almost instantly killed in the wreck. The foregoing facts appeared from the testimony of various witnesses on the part of plaintiff. At the close of her case, defendant asked an instruction in the nature of a demurrer to the evidence, which the court refused. Defendant offered no testimony.

The following instructions were given as indicated: For plaintiff: "(1) If the jury believe from the evidence that the main and side tracks of the defendant's railroad at Bridgeton were, on July 13th and 14th, 1888, on a grade that descended eastward, and that defendant's division road master, at or about said first-named date, negligently caused the brake staffs to be taken off of nine or more fiat cars, and...