Gray v. Wabash R. Co.

• Decision Date: 01 May 1911
• Citation: 137 S.W. 324,157 Mo. App. 92
• Parties: GRAY et al. v. WABASH R. CO.
• Court: Missouri Court of Appeals

137 S.W. 324

157 Mo. App. 92

GRAY et al. v. WABASH R. CO.

St. Louis Court of Appeals. Missouri.

May 1, 1911.

1. MASTER AND SERVANT (§§ 180, 265)—INJURY TO SERVANT — LIABILITY — STATUTORY PENALTY.

Rev. St. 1909, § 5425, imposing a penalty for the death of any person resulting from negligence of a coemployé in running, conducting, or managing any train, is a penal statute, and must be strictly construed, and it gives a cause of action only where the subject-matter falls strictly within its provisions, and one suing for recovery for wrongful death must show that death was occasioned by negligence while running, conducting, or managing a train.

2. MASTER AND SERVANT (§ 180)—INJURY TO SERVANT — LIABILITY—STATUTORY PENALTY —"RUNNING, CONDUCTING, OR MANAGING A TRAIN."

An assistant station agent passing, by means of a hoop, an order from a dispatcher to a brakeman on a moving train passing the station, pertaining to the movement of the train, is not "running, conducting, or managing a train" within Rev. St. 1909, § 5425, and, where he delivered such order, his negligence in directing a servant under him to run by the side of the train to receive the hoop is not within the statute.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by Samuel Gray and another against the Wabash Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed.

J. L. Minnis and Robertson & Robertson, for appellant. H. S. Booth and Barclay, Fauntleroy & Cullen, for respondents.

NORTONI, J.

This is a suit for damages alleged to have accrued to plaintiffs through defendant's negligence. Plaintiffs recovered, and defendant prosecutes the appeal.

Defendant, an incorporated company, owns and operates a railroad through the city of Centralia, Mo., and plaintiffs are the parents of Leroy E. Gray, a minor, who came to his death through being run over by defendant's train adjacent to its depot at that place. The suit proceeds, at the instance of the parents, under section 5425, R. S. 1909, for the recovery of the penalty of not less than $2,000 nor more than $10,000 for every such death which shall occur through the negligence of an agent or servant of defendant "whilst running, conducting or managing any locomotive, car or train of cars," etc., and the court directed the jury that in event it found the issue for plaintiffs the recovery should be for not less than $2,000 nor to exceed $10,000, as prescribed in the statute.

Plaintiffs' son at the time of his death was about 18 years of age, and it appears he was in the employ of defendant at its station at Centralia, where he was being taught the avocation of railroad station work, but with positive directions from his father to defendant that in no event should he be detailed to duties about moving trains. One Hampton, defendant's assistant station agent, was the immediate superior of plaintiffs' son, with power and authority to direct a performance of duties within the scope of his employment, and at the time he was killed the youth was obeying an order of Hampton to get a hoop. The hoop referred to had immediately theretofore been given by Hampton to defendant's brakeman on a passing locomotive as a means of conveying to him an order relating to the progress of the train, and after so doing Hampton directed plaintiffs' son to "get the hoop," which, it is said, involved the idea that the young man should run after the locomotive and receive the hoop from the brakeman upon his removing the message therefrom and throwing the hoop away from the engine. The train which occasioned the death of plaintiffs' son was of freight cars with locomotive attached, which passed through Centralia during the day, at a rate of about 12 or 15 miles per hour, and it appears that it became the duty of Hampton, the assistant agent, to deliver a telegraphic train order to those on the locomotive, pertaining to its further progress and movements. An appliance spoken of in the evidence as a "hoop" is supplied to station agents on defendant's railroad for the purpose of delivering messages and train orders, when required, to those on trains which pass the station without stopping, and this hoop is constructed from two strands of light wire, coiled together so as to a constitute a circular hoop of about two feet in diameter. The station agent, after folding the paper containing the message or train order, inserts it between the two wires thus coiled together and holds the hoop aloft, so that one standing in the gangway of the locomotive may catch it on his extended, bender arm while the train is in the act of passing.

At the time in question, Hampton had thus performed the act of delivering the message to defendant's brakeman, who stood in the gangway of the locomotive attached to the passing train, and caught the hoop as Hampton tendered it aloft. As the brakeman was in the act of removing the message from the wire, with the purpose of returning the hoop to some one who might be present to catch it, or to throw it upon the depot platform, as was usual, Hampton directed plaintiffs' son, who was standing near, to "get the hoop." In obedience to this order, the young man ran along the depot platform near the passing train and followed the locomotive, with his eye upon the brakeman who was removing the message from the hoop, and while thus running collided with a semaphore post, which was erected on the platform about four feet from the train, in such a manner as to be precipitated under the moving train, by which he was run upon and killed. Defendant's semaphore arrangement is a substantial post about 12 inches square, erected immediately in front of and considerably apart from its depot on the platform, about 5 or 5½ feet from the rail of the track, for the purpose of conveying signals to trains at night by means of signal lights which are maintained thereon about 20 feet above the platform. Plaintiffs' son,...