Rinard v. Omaha, K. C. & E. Ry. Co.

• Decision Date: 12 June 1901
• Citation: 64 S.W. 124,164 Mo. 270
• Parties: RINARD v. OMAHA, K. C. & E. RY. CO.
• Court: Missouri Supreme Court

64 S.W. 124

164 Mo. 270

RINARD v. OMAHA, K. C. & E. RY. CO.

Supreme Court of Missouri, Division No. 1.

June 12, 1901.

INJURY TO RAILROAD EMPLOYÉ — COLLISION — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — PLEADING — SEVERAL COUNTS — ELECTION — DEFINITENESS AND CERTAINTY — TELEGRAPHIC ORDERS — ADMISSIBILITY — TRAIN DISPATCHER'S NEGLIGENCE — INSTRUCTIONS.

1. Where the cars of a work train were being pushed before the engine, the failure to post a flagman on the leading car to warn the engineer of approaching danger, as required by the rules of the company, constituted negligence.

2. A work train had the right of way between H. and D., except as to regular trains, and started west to D. An extra freight had orders to look out for the work train between H. and D., but did not send any flagman ahead to locate the work train, with which it collided at a curve, resulting in the death of plaintiff's husband. Held, that the persons operating the freight train were guilty of negligence.

3. A work train was given the right of way between H. and D., except as to regular trains. An extra freight was ordered to look out for a work train between H. and D. The engineer of the freight train interpreted the order to mean that he should look out for flags set by the work train. Held, that the failure of the train dispatcher to notify the operators of the work train of the approach of the freight, so that flags could have been set, constituted negligence.

4. A road master had charge of reconstructing defendant's track, and was riding in the caboose of a work train, which was running with the cars ahead of the engine, and collided with a freight train, fatally injuring him. The manner of running the work train was under the control of its conductor, and no flagman was posted on the leading car to warn its engineer of danger. Held, that the road master was not guilty of contributory negligence.

5. Plaintiff's petition contained three counts for the killing of her husband, occasioned by the negligent operation of defendant's trains. The first alleged that the husband was in the defendant's employ as assistant road master; the second, that he was in the employ of a company which was reconstructing defendant's track; and the third, that he was a passenger on one of defendant's trains. Held that, the cause of action being single, plaintiff should not be required to elect on which count she would stand.

6. The second and third counts did not constitute a departure from the first.

7. Defendant, by answering over, waived its right to review the question whether the second and third counts constituted a departure from the first.

8. Plaintiff alleged that a work train on which her husband was riding was backing west when it collided with a freight train from the east, as the result of the negligence of defendant's agents and servants while running the trains. Held, that a motion to make the petition more definite and certain, by specifying the agents and servants whose negligence caused the death of plaintiff's husband, was properly denied.

9. Where plaintiff alleged that her husband was killed in a collision occasioned by the negligent manner in which the defendant's servants operated the colliding trains, telegraphic orders in reference to the running of such trains were admissible, without a specific allegation that the dispatcher was negligent.

10. Rev. St. 1889, § 4425, provides that, whenever any person shall die from any injury resulting from the negligence of any person in running any train, the railway company shall be liable to the deceased's next of kin in the sum of $5,000. Held, that a train dispatcher was an employé engaged in running trains, within the meaning of the statute.

11. Where there was no evidence of any contributory negligence on the part of the deceased or of any person under his direction, an instruction that, notwithstanding defendant's negligence, the plaintiff could not recover if the deceased or any one under his direction was guilty of negligence, was properly refused.

12. Where plaintiff's husband died from injuries received in a collision, a charge that the defendant was not liable, under Rev. St. 1889, § 4425, if the collision resulted from telegraphic orders relating to the management of the colliding trains, was properly refused.

Appeal from circuit court, Carroll county; W. W. Rucker, Judge.

Action by Belle Rinard against the Omaha, Kansas City & Eastern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. G. Trimble, Hall & Hall, and Virgil Conkling, for appellant. Harber & Knight, for respondent.

MARSHALL, J.

This is an action for damages for the killing of plaintiff's husband, caused by a collision of two trains upon defendant's road near Galt, in Grundy county, on December 23, 1897. The plaintiff obtained a verdict for $5,000, and defendant appealed.

The amended petition contains three counts. The first count alleges that Samuel W. Rinard, plaintiff's husband, was in the employ of defendant as assistant road master, and that it was his duty to pass over defendant's road and to ride in its cars; that on December 23, 1897, while riding in the caboose of one of defendant's trains, known as a "work train," near Galt, it collided with another train on defendant's road, and he was injured so that he died. It further alleges "that the train upon which plaintiff's said husband was riding was backing, going west from or near the city of Galt to the town of Dunlap; that the other said train so colliding with said work train was going east towards the city of Galt; and that, whilst so running and moving in opposite directions upon the same track, said trains collided, the engine of the train so going east and the caboose of the work train aforesaid striking each other with great force." Then, after alleging that the deceased was without negligence or fault, the petition charges that the collision was "the result of, and occasioned by, the negligence of the officers, agents, servants, and employés of defendant while running, conducting, and managing said locomotives, cars, and trains aforesaid." The second count charges that the deceased was engaged "in directing and managing divers other persons, and assisting them somewhat in the taking up of certain rails and ties upon defendant's roadbed and railway aforesaid, and in replacing and relaying the same with other rails and ties, and in doing and directing other work and things in and about defendant's roadbed and tracks; that said work was being done by certain person or persons, company or corporation, being styled and designated as the Missouri Railway Construction Company; that whether said person or persons, company or corporation, was in fact defendant, or an association of persons, composed of directors, officers, or other persons connected with defendant, or a mere myth, plaintiff is unable to say, and as to whether said work was being done under contract between defendant and said company, pretended or real, plaintiff is unable to state, but plaintiff avers the facts to be that said work was being done with the knowledge and consent of the defendant and its officers. And plaintiff further avers the facts to be that, in the discharge and performance of her said husband's (Samuel W. Rinard's) duties, it became necessary, as a part thereof, as was well known by defendant, that he (said Rinard) ride from place to place upon defendant's said line of railway upon defendant's trains, especially its work or construction train, which said train was provided and furnished by defendant to transport him (said S. W. Rinard) from place to place in safety over its said line of road where said S. W. Rinard, in the discharge of his duties aforesaid, was required to be and work, and that, under said S. W. Rinard's employment aforesaid, he was required to work and be upon divers parts of defendant's said roadbed and line of railway between the city of Trenton, in said Grundy county, and the city of Milan, in Sullivan county, Missouri." The collision and negligence are then charged as in the first count. The third count charges that the defendant, for a valuable consideration, undertook to transport the deceased on one of its trains, known as its "work extra" or "work train," from at or near the city of Galt to the village of Dunlap, and that while so riding the collision occurred. The negligence charged was as in the first count. The original petition contained only the first count. When the amended petition was filed, the defendant moved to require the plaintiff to elect on which count she would stand; and, upon this motion being overruled, the defendant moved to strike out the second and third counts, as being a departure from the original cause of action pleaded, and as being inconsistent with the first count; and, upon this motion being overruled, the defendant moved to require the plaintiff to make each count more definite and certain, by specifying the officer, agent, or employé whose negligence occasioned the injury, and upon what particular train such officer was negligent; and, this motion being overruled, the defendant filed an answer, which is a general denial and a plea of contributory negligence.

The trial developed this state of facts: There was no such company as the Missouri Railway Construction Company. The defendant was engaged in replacing the old rails with new steel rails. On the day of the accident the work was progressing near Galt. The engine on the work train was numbered 6, and was headed towards the east. The cars extended behind the engine towards the west. The caboose car was next to the rear of the train; there being only a flat car, loaded with old rails, behind it. After working all day, the train started a few minutes after 6 o'clock in the evening and backed to Galt, where some of the workmen left the train. The train then proceeded west, backing as before, towards Dunlap. When it...