Relyea v. Kansas City, Ft. S. & G. R. Co.

• Decision Date: 14 November 1892
• Parties: RELYEA v. KANSAS CITY, FT. S. & G. R. CO.
• Court: Missouri Supreme Court

20 S.W. 480

112 Mo. 86

RELYEA v. KANSAS CITY, FT. S. & G. R. CO.

Supreme Court of Missouri.

November 14, 1892.

RAILROAD COMPANIES — DEATH OF EMPLOYE — FELLOW SERVANTS — NEGLIGENCE.

1. A brakeman of one freight train is the fellow servant of the fireman of another freight train, employed on the same railroad. Thomas and Brace, JJ., dissenting. Sullivan v. Railway Co., 10 S. W. Rep. 852, 97 Mo. 113; Dixon v. Railroad Co., (Mo. Sup.) 19 S. W. Rep. 412; Parker v. Railroad Co., Id. 1119; and Schlereth v. Railroad Co., Id. 1134, — distinguished. 19 S. W. Rep. 1116, affirmed.

2. In an action for the death of plaintiff's husband, caused by defendant's negligence, it appeared that at a certain station the conductor of defendant's freight train ordered the rear brakeman to set out four front cars; that the latter set no brakes on the rear cars, as it was his duty to do, and when the front cars and engine were uncoupled the rear cars ran backwards down a long grade, and collided with another freight train coming towards the station, killing plaintiff's husband, who was fireman on the latter train. Held, that the conductor of the first train was not guilty of negligence in failing to see that the rear cars were secured.

3. In such case it appeared that the rear train, on which deceased was fireman, was running nearly an hour ahead of schedule time, under proper orders, but without notice to the conductor of the forward train; that it was a common thing to run these trains ahead of time; and that it was not usual to notify the conductor of the forward train. Held, that defendant was not guilty of negligence in running the rear train ahead of time, when it does not appear that it was to run on the time of the forward train.

4. The cause of the injury was the negligence of the brakeman of the forward train in failing to secure the cars at the station, and not the running of the rear train ahead of time.

5. It appeared that these trains were operated at a speed not exceeding 15 miles per hour; that to the through freight trains two brakemen, and to the local freight trains three brakemen, were allotted; and that they and the conductors constituted the usual and sufficient force. Held, that defendant was not guilty of negligence in not having more than two brakemen on the forward train, since it was a through freight, although use could have been made of another brakeman at this particular time. 19 S. W. Rep. 1116, affirmed.

In banc. Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Action by Emma J. Relyea against the Kansas City, Ft. Scott & Gulf Railroad Company to recover damages for the death of her husband caused by defendant's negligence. From a judgment for defendant, plaintiff appeals. Affirmed.

Crittenden, Stiles & Gilkerson and G. L. Jones, for appellant. I. P. Dana, C. W. Blair, and Pratt, Ferry & Hagerman, for respondent.

BLACK, J.

The plaintiff brought this suit as the widow of Johnson Relyea to recover damages because of the death of her husband, who received injuries while in the employ of the defendant, and from which injuries he died. The trial court sustained a demurrer to the plaintiff's evidence, and she took a nonsuit, with leave, etc. In support of this ruling it is insisted that plaintiff's husband received the injuries which caused his death by reason of the negligence of a fellow servant, and for this reason the defendant is not liable. The evidence produced by the plaintiff discloses the following facts: At the time of the accident that part of the plaintiff's road extending from Thayer in a northwest direction for a distance of 138 miles to Springfield constituted a division. Two through freight trains, known as "section 1" and "section 2" of No. 54, left Thayer for Springfield at 2 or 3 o'clock in the morning. Each of these trains had a conductor and two brakemen, besides an engineer and fireman. They were followed by local freight train No. 52, which had in charge of it a conductor, three brakemen, an engineer, and a fireman. The plaintiff's husband was fireman on the engine of this train 52, which was the last of the three to leave Thayer. The distance from Thayer to a station called "Burnham" is 41 miles, and it is four miles from there to the next station, called "Willow Springs." From Burnham to the latter station there is a down grade for about half the way, and then an up grade to the switch at Willow Springs. Section 2 of train No. 54 was in the rear of section 1, and had 14 or 15 cars when it reached Burnham. It took on 4 more cars at that place. When it reached Willow Springs, the conductor concluded to drop 4 cars on the switch, because the train was too heavy to haul over the up grade from there to Sterling, the next station; and to that end the engine and 4 forward cars were uncoupled, leaving the 14 cars standing on the main track. These 14 cars ran back of their own momentum towards Burnham, and collided with train 52, which had in the mean time left that station for Willow Springs. It was in this collision that plaintiff's husband received the injuries of which he died. Frank Shea was the conductor, Austin the head, and Short the hind, brakeman on section 2 of train 54. The plaintiff called Shea and Austin as witnesses, and they are the only witnesses who have any knowledge of what occurred at Willow Springs. Shea, the conductor, says when he reached Willow Springs with his train he directed Short, the rear brakeman, to cut out four cars; that Short went to assist the engineer in setting them in on the side track; that it was Short's duty to see that the hind end of the train was secured with the brakes. From Austin's testimony it appears section 1 of train 54 was at Willow Springs when section 2 arrived. He and his conductor, Shea, had a conversation at that place on the station platform, in which Shea told him to go on to Sterling, the next station, with section 1, and there notify train No. 3, coming from the other direction. This order was given to avoid a collision between No. 3 and section 2. Austin got on the caboose of section 1, and that train started up, and then stopped. It seems the engineer of section 1 refused to take the chances of reaching the next station in time to pass No. 3. Austin then went back to the head of his train, and met Shea and Short, when Shea said: "Go after the hind end; they have run back." He and Short, with the engineer and the 4 cars, went back after the escaping 14 cars. These cars ran back because the brakes were not set. It was still very dark when all these things took place at Willow Springs.

1. From the foregoing statement of the facts it is manifest that Short, the hind brakeman on section 2 of train 54, was guilty of negligence in not setting the brakes on some of the 14 cars before he cut out the 4 cars. The question then arises whether the brakeman on one of these trains and the fireman on the other were fellow servants within the rule which exempts the master from liability when one servant is injured by the negligence of his coservant. Much has been said on this subject of late in the following cases: Sullivan v. Railway Co., 97 Mo. 113, 10 S. W. Rep. 852; Dixon v. Railroad Co., (Mo. Sup.) 19 S. W. Rep. 412; Parker v. Railroad Co., Id. 1119; Schlereth v. Railroad Co., Id. 1134. These cases reject the rule of exemption as it is often broadly stated, though less frequently applied, that all are coservants who are engaged by the same master in carrying on some general enterprise, no matter how different and disconnected the work may be. They assert the more reasonable and just rule that they are coservants who are so related and associated in their work that they can observe and have an influence over each other's conduct, and report delinquencies to a common correcting power; and they are not coservants who are engaged in different and distinct departments of work. They show that track walkers and track repairers and persons operating a stone crusher are not fellow servants with those engaged in operating trains. Now, in this case each servant was under the immediate command of his own conductor, it is true; but that fact does not constitute a decisive or controlling circumstance. Many cases may be instanced where different gangs of men, each gang under the orders of its own foreman, are clearly coservants within the rule of exemption. It does appear in this case that train 52 left Thayer and pursued its trip under the orders of the train dispatcher, and it is fair to presume that the other trains made their trips under orders emanating from the same source. The injured and offending servants were operating trains over the same section of the road. Though sometimes far apart, they were necessarily thown into close relation in respect to the performance of their work, and they were engaged in the same department of service. They were, in our opinion, coservants, within the fair meaning of the rule of exemption, so that defendant is not liable for injuries inflicted by one upon the other. This case, is, on its unquestioned facts, unlike those above mentioned. It is more like Schaub v. Railroad Co., 106 Mo. 74, 16 S. W. Rep. 924. In that case a brakeman was injured by cars standing on a side track. Says the court: "There was no evidence of any negligence in the case of any one except the train men who put the cars on the switch, and for that negligence the company was not liable to the deceased." That case was, in its facts, different from those before mentioned, where the relation of fellow servant was held not to exist, and, in the opinion of the writer, it is not in conflict with them in the conclusion reached on this subject.

2. But it is insisted on the part of the plaintiff that the liability of the defendant may be made to stand on the ground that the conductor of the forward train was an agent and representative of the defendant; that he was guilty of negligence leading to the injury; and that ...