Flynn v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Decision Date: 30 April 1883
• Citation: 78 Mo. 195
• Court: Missouri Supreme Court
• Parties: FLYNN v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

78 Mo. 195

FLYNN

v.THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

REVERSED.

W. P. Hall and Strong & Mosman for appellant.

Woodson & Crosby and Pike & Pike for respondent.

PHILIPS, C.

John Flynn was an engineer on defendant's road, running a passenger train to and fro between St. Joseph and Council Bluffs. He was killed by the upsetting of his engine on defendant's road on the 23rd day of August, 1875. The plaintiff is his widow and sues for $5,000 damages. The grounds of negligence alleged in the petition are the bad and defective condition of defendant's railroad track at the point of disaster; the defective condition of the flanges of the wheels of the engine; the defective and unsafe condition of the air brakes and defendant's failure on notice to repair them, and its neglect and failure to provide the train with sufficient brakemen in the absence of the air brake. The answer tendered the general issue, and pleaded contributory negligence on the engineer's part.

The evidence showed that Flynn was a competent and experienced engineer, and made three trips a week over this road. The engine in question was not the one he used on said road. His regular engine was out of repair. He examined the engine assigned him and deemed it in order. On the 22nd day of August he ran it from St. Joseph to Council Bluffs. On the way the air brakes got out of order. He notified the conductor and required the brakeman to employ the brakes the balance of the way. On reaching Council Bluffs he informed the assistant master mechanic of the trouble, but it seems the defect in the air brake could not be repaired there, nor could the repair be made short of St. Joseph. Flynn's assigned duty required him to take this engine and train back to St. Joseph on the 23rd. He informed the conductor of the situation of the air brake and requested that the train be broke by the men. The evidence shows that for such train two brakemen were ordinarily sufficient, and that it was customary for the baggageman to perform the duty of brakeman when necessary. On this train there was but one regular brakeman, and the baggageman did not appear to have performed this duty on this trip. On the way back to St. Joseph, while the train was running at “a usual rate of speed, about twenty miles an hour,” the wheels of the engine jumped the rails and after running about 500 or 600 feet, went off, killing Flynn. The evidence tended to show that at this point the track was in bad condition, and that the engine was derailed in consequence of a low joint and that this low joint had existed for several days, and was perhaps known to some of the trackmen. There was no evidence that deceased was apprised of its existence, but there was evidence from which it might reasonably be inferred that he had notice of the generally bad condition of portions of the road. The evidence showed that with the air brake, the train might have been checked up before the engine upset, and with the ordinary brakemen it would require probably 400 or 500 feet to check it at the rate it was going. The evidence also showed that J. F. Barnard, general superintendent of defendant, issued on the 22nd day of July, 1876, an order to W. D. Rowley, master mechanic of defendant, as follows: “Notify engineers not to run faster than card time between Wing Lake and Corning, and between Phelps and Nishnabotna, and to modify their speed as much as necessary for safety until the track can be got into better condition.” This notice was served upon Flynn a short time before the accident, and Flynn indorsed his name on it as evidence of service. The evidence also showed that the point where the engine and train left the track, and where Flynn was killed, was within the limits described in the notice.

For the plaintiff the court gave the following instructions:

1. If the jury find from the evidence that the road bed or track of defendant, at the point where the engine in charge of said John Flynn was thrown off the track, was defective or unsafe, or that the said engine at the time of the accident was defective or unsafe, and that defendant knew thereof, or might have known thereof by the exercise of reasonable care and diligence, and that the said engine so in charge of the said Flynn as engineer was so thrown off the said track in consequence of said defective condition of said track or of the said engine, after such defective condition of said track or said engine was known or ought to have been known by defendant, and that said Flynn received injuries in consequence of said engine being thrown off the track as the result of said defective condition of said railroad track or engine, of which said Flynn died, and that said Flynn was exercising ordinary care and prudence at the time he received said injuries, and was guilty of no negligence directly contributing thereto, and if they further find from the evidence that plaintiff was the wife of said Flynn at the time of his death, then the jury will find for the plaintiff in the sum of $5,000.

2. Although the jury may find from the evidence that the track of defendant, at the point where the engine was thrown off, was unsafe or dangerous, or that the engine was defective or unsafe, or that the same was known to the deceased; yet if the defective or dangerous condition of said track or engine was not of sufficient character that they could not be reasonably used by the exercise of skill and diligence, then the said Flynn, in using said track or engine as such employe of defendant, did not assume the use of said track or engine at his peril, and was only required to take and was responsible for the care incident to the situation in which he was placed in the use of said track or engine, and whether he exercised such care in the use of said track or engine at the time of the accident, is a fact for the determination of the jury.

The court then gave for defendant the following instructions:

3. If the jury believe from the evidence that the death of John Flynn was caused by the negligence or want of care on the part of the brakemen on the train in proof, the jury will find for defendant.

4. If the jury believe from the evidence that the notice in proof purporting to be signed by J. F. Barnard, as superintendent of defendant, was so signed, and that said Barnard was superintendent as aforesaid at the time of signing the same, and that deceased knew of said notice before the accident in proof, and said notice was in force at the time of the accident, and said accident occurred between Nishnabotna and Phelps by reason of a defect in defendant's track between said points, and by reason of his failure to modify the speed of the train, then the jury will find for defendant.

7. If the jury believe from the evidence that after said air-brake ceased to work, deceased informed the conductor of the train in proof at Council Bluffs that said brake would not work, and that said conductor must tell the brakemen of the train and the baggage master that they would have to break the train by hand to St. Joseph, and did not ask for additional brakemen, and that said conductor did accordingly direct said brakeman and baggage master to break said train to St. Joseph by hand, then defendant is not responsible for not employing additional brakemen, and if said accident was occasioned by the want of additional brakemen, they will find for defendant.

9. If the jury believe from the evidence that the negligence or carelessness of deceased directly contributed, either in part or in whole, to his death, they will find for defendant.

10. If the jury believe from the evidence that at the time of the accident the engine or train of defendant was in such condition that with reasonable care it could be used with safety, then for any injury caused by any defect in such engine defendant is not liable, and as to such injury they will find for defendant.

11. If the jury believe from the evidence that at the time of the accident the engine or train of defendant were in such condition that they could not with reasonable care be used with safety, and such unsafe condition was known to deceased, they must find for defendant as to any injury caused by the unsafe condition of such engine or train.

12. If the jury believe from the evidence that the track of defendant at the time and place of the accident was not in such condition as to be used with safety with reasonable care, and that deceased had notice of such condition, then plaintiff cannot recover for any injuries caused by such defect in the road.

13. If the jury believe from the evidence that the road of defendant at the time and place of the accident was in such condition that with reasonable care it could have been passed over by the train with safety, they will find for defendant for any injury caused by a defect in such road.

The court on its own motion gave the following instruction:

If the jury believe from the evidence that the air-brake in proof ceased to work after the train in proof left St. Joseph, and that it was in the same condition when said train left Council Bluffs, and the condition of said air-brake rendered the running of said engine and train dangerous to the safety of said Flynn, of which fact of the defective condition of said brake and the danger to him from running said train without the use of said air brake, said Flynn was well acquainted, then said Flynn in starting on such trip, knowing said air brake to be in said condition, took upon himself the risk of all accidents which might occur by reason of said defective air-brake.

To the giving of said last mentioned instruction the defendant objected and excepted.

The defendant asked a number of other instructions, some of which are immaterial to be passed on, and such as are material will be considered in the proper connection.

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