Smith v. Wabash, St. Louis & Pacific Ry. Company

CourtUnited States State Supreme Court of Missouri
Citation4 S.W. 129,92 Mo. 359
PartiesSmith v. The Wabash, St. Louis & Pacific Railway Company, Appellant
Decision Date01 April 1887

Appeal from Livingston Circuit Court. -- Hon. J. M. Davis, Judge.

Affirmed.

W. H Blodgett and G. B. Burnett for appellant.

(1) The testimony showed that the fellow-servants of deceased were out upon the track, without written orders, in violation of the rules of the company, and were thereby guilty of negligence, which was the immediate cause of the injury complained of. Thomas v. Railroad, 51 Miss. 637; Woolsey v. Railroad, 33 Ohio St. 227; Wright v Railroad, 25 N.Y. 562; Wood v. Railroad, 70 N.Y. 195. (2) The train dispatcher and deceased were fellow-servants. Rose v. Railroad, 58 N.Y. 217; Chapman v. Railroad, 55 N.Y. 579; Slater v Jewett, 85 N.Y. 61; Robertson v. Railroad, 78 Ind. 77. (3) Prima facie, the train dispatcher, through whose negligence it is alleged in the petition the injury was occasioned, was a fellow-servant of deceased, and it was incumbent on the plaintiff to aver, and establish by proof, facts showing that such relation did not exist. McGowan v. Railroad, 61 Mo. 538; Blessing v. Railroad, 77 Mo. 410. The facts alleged in the petition to show that the train dispatcher and deceased were not fellow-servants were wholly unproved. (4) The material averment of the petition is, "that the train dispatcher gave an order, which, under the rules and regulations of the defendant, the men were bound to obey," while the uncontradicted proof was that the train dispatcher gave no order; that, under the rules and regulations, orders could only be given in writing, and that it was the duty of the men to disobey all verbal orders. Therefore, as there was no proof of the material averments of the petition, the plaintiff was not entitled to recover, and defendant's demurrer to the evidence should have been sustained. Harper v. Railroad, 44 Mo. 488; Buffington v. Railroad, 64 Mo. 246; Waldhier v. Railroad, 71 Mo. 514; Eden v. Railroad, 72 Mo. 212; Price v. Railroad, 72 Mo. 414. (5) Assuming that the train dispatcher and deceased were not fellow-servants, the alleged order was not an order emanating from the defendant, nor one which the servants in charge of the engines were bound to obey. (6) The proximate cause of the injury was not the negligence of the train dispatcher, as alleged in the petition. The proximate cause of the injury was the negligence of the conductor of the engine, upon which deceased was employed, and of the yardmaster, in going for the caboose, without written orders, and in their failing to notify the train dispatcher that they were going. (7) The court gave improper instructions, at the instance of the plaintiff. Burruss v. Blair, 61 Mo. 133; Edwards v. Smith, 63 Mo. 119; Rains v. Railroad, 71 Mo. 164; Regan, Adm'r, v. Railroad, 51 Wis. 599; Railroad v. Sweet, Adm'r, 45 Ill. 197; Railroad v. Sharman, Adm'r, 43 Ill. 338; Railroad v. Weldon, 52 Ill. 290: Pierce on Railroads, 397; Nicholl v. Winfrey, 79 Mo. 544. (8) The court refused to give proper instructions asked by defendant. See authorities supra.

Waters & Wyne for respondent.

(1) From the evidence it appears that the train dispatcher had the sole and exclusive control of all regular and extra trains and engines of defendant company, and of defendant's servants employed thereon. He exercised the power and discharged the duties of train dispatcher and superintendent in regard to such trains and engines, and employes operating the same. Blessing v. Railroad, 77 Mo. 410; Harper v. Railroad, 47 Mo. 580; Brickner v. Railroad, 2 Lansing, 506; Railroad v. McLallen, 84 Ill. 109; Washburn v. Railroad, 3 Head. [Tenn.] 638; Flike v. Railroad, 53 N.Y. 553; Boothe v. Railroad, 73 N.Y. 41; Railroad v. Henderson, 37 Ohio St. 318; Avilla v. Nash, 117 Mass. 318; Darrigan v. Railroad, 24 Law Reg. [Conn.] 452; Moore v. Railroad, 85 Mo. 588. (2) If the train dispatcher knew, or by the use of ordinary care might have known, that engine 112 was out on the road after the caboose of 84, and sent the switch engine in charge of the yardmaster after the same caboose, whether by verbal or written orders, or permitted the switch engine to go, and plaintiff's husband, a fireman on 112, was thereby injured and killed, then the negligence of the train dispatcher is the negligence of defendant company. Moore v. Railroad, supra; Darrigan v. Railroad, supra; Shear. & Redf. on Neg., addenda, p. 25, sec. 100; Wood's M. & S., secs. 370, 450, 452; Sheehan v. Railroad, 91 N.Y. 332; Railroad v. Stoelke's Adm'r, 8 Am. & Eng. Ry. Cases, 523; Moon's Adm'r v. Railroad, 49 Am. Rep. 404; Railroad v. Swanson, 16 Neb. 254; Slater v. Jewett, 84 N.Y. 61; Shear. & Redf. on Neg., p. 123, sec. 93, note 3. (3) The court below committed no error in the trial of the cause. Although the train dispatcher was present in court, he was not called to justify or excuse his conduct. The defence relied solely on the fact that, as the train dispatcher's orders were verbal, they were unauthorized and should have been disobeyed. The circumstances under which plaintiff's husband lost his life were of the most aggravating character, and the verdict was not excessive.

Norton, C. J. Sherwood, J., dissents.

OPINION

Norton, C. J.

This is an action to recover damages for the killing of plaintiff's husband, alleged to have been occasioned by the negligence of defendant, in which she recovered judgment for five thousand dollars, from which the plaintiff has appealed, and among others assigns as error the action of the court in refusing to instruct that, under the pleadings and evidence, plaintiff was not entitled to recover. A proper disposition of this question necessitates a review of the evidence, which shows that freight train No. 84 arrived from the west, on the morning of the fifteenth of December, 1881, at Stanberry, a station on the line of defendant's road, and the end of a division of said road, extending from Stanberry to Omaha; that, upon its arrival, it was discovered that the caboose belonging to it had become detached and was left standing on the track four or five miles west of Stanberry; that, at the time of the arrival of train 84, another freight train, No. 85, with engine No. 112 attached to it, was standing on the track already made up and ready to start going west. The conductor of this train, James E. McCarty, testified that his engine was No. 112; that Mike Bahn was his engineer and deceased his fireman; that his train was to go out; that he was standing by the train dispatcher's window, when train 84 came in, and Luke Ferriter, train dispatcher, said to him, "Jim, you will have to take your engine and go after that caboose, I guess, as it will save time;" that he asked Ferriter about orders, and Ferriter said he couldn't give him orders as there was no operator at Conception; that there was nothing coming east behind 84, and that he would be perfectly safe in going. Witness then said: "I told him I would go down and see Mike; that if Mike would go, I would go after the caboose. I went down there and saw Mike and we concluded to go after the caboose, and we started off after it promptly, without going back to the dispatcher's office." That they found the caboose between three and four miles west of Stanberry, coupled on to it, and started back, and had gone, perhaps, a mile when they collided with the switch engine.

Mr. Bondurvant, who, at the time of the accident, was yardmaster at Stanberry, testified as follows: That train 85 was made up, and on the track ready to go west, when train 84 whistled for Stanberry; then, when 84 arrived, he discovered there was no caboose on the train; that, as the yard was blocked, he told the engineer of train 84 to go to the roundhouse, and that he would go after the caboose, the engineer having said he didn't think it was a great way back; that he went up to see the train dispatcher, Mr. Ferriter, and the latter asked him if number 85 had gone, and he answered "no," that they couldn't go until Burns arrived; he had charge of the train that came in without the caboose; he then said to him, "Ferriter, hadn't we better go and get the caboose, as it was lost up the road two or three miles?" that Ferriter asked him if 112 had gone, and he answered, "no"; that he did not ask him if they had gone after the caboose, and he understood him to have reference to 112, with train 85; that Ferriter then told him that he had better go and get the caboose, with the switch engine; he then asked Ferriter if he would need orders, and he said, "no," it was not necessary to have any, that he would protect him while he was gone, and would let nothing out till he got back; he then went down, got on the switch engine, and started, with three men on the engine besides himself; they met 112 about five miles west of Stanberry, backing up with the caboose; the two engines collided, and plaintiff's husband was killed; that he did not notice what engine was standing in the yard when he left.

It was argued that the rules and regulations for the movement of trains and engines, in force at the time of the accident, and printed on time-table 49, were known and understood by the conductor and engineer in charge of engine 112, by the yardmaster in charge of the switch engine, and by the train dispatcher. Plaintiff also put in evidence the following rules, printed on said time-table 49:

"Rule 62. The superintendent and appointed train dispatchers are the only persons authorized to move trains by telegraph.

"Rule 63. No wood, construction, or extra train, or engine, must be run upon the road, without written orders or instructions from persons authorized to move trains.

"Rule 64. All telegraphic orders, for the movement of trains, will be addressed to...

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