4 S.W. 129 (Mo. 1887), Smith v. Wabash, St. Louis & Pacific Ry. Company

Citation:4 S.W. 129, 92 Mo. 359
Opinion Judge:Norton, C. J.
Party Name:Smith v. The Wabash, St. Louis & Pacific Railway Company, Appellant
Attorney:W. H. Blodgett and G. B. Burnett for appellant. Waters & Wyne for respondent.
Judge Panel:Norton, C. J. Sherwood, J., dissents.
Case Date:April 01, 1887
Court:Supreme Court of Missouri
 
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Page 129

4 S.W. 129 (Mo. 1887)

92 Mo. 359

Smith

v.

The Wabash, St. Louis & Pacific Railway Company, Appellant

Supreme Court of Missouri

April 1, 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

Page 130

[92 Mo. 362] 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 [92 Mo. 363] 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...

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