Roblin v. The Kansas City, St. Joseph & Council Bluffs Railroad Company
| Decision Date | 31 January 1894 |
| Citation | 24 S.W. 1011,119 Mo. 476 |
| Parties | Roblin et al., Appellants, v. The Kansas City, St. Joseph & Council Bluffs Railroad Company |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. H. M. Ramey, Judge.
Action brought against the defendant company, by James Quinn as next friend of Mary and William C. Roblin, minors, to recover damages resulting from the death of their father, alleged to have been caused by the incompetency of F. B. Tracy, the engineer of the train of which Wm. H. Roblin, their father was the conductor in charge. Such portion of the petition as necessary to quote, is the following:
"That said Wm. H. Roblin, the father of said plaintiffs and the husband of said Celia Roblin, was on the said twenty-seventh day of March, 1888, and long prior thereto, an employee and in the service of the defendant as conductor of a freight train on said road between Kansas City and St. Joseph, and that while the said Wm. H. Roblin was at said time performing the duties required of him as such conductor in and about running a freight train and in the care and management of the same and endeavoring to unite and fasten two parts of said train together, the same having been broken in twain, the defendant by and through the carelessness and negligence of its servants and employees, and by and through the incompetency and unskillfulness of its engineer having charge of the engine moving and running said train, of which incompetency and unskillfulness defendant had due notice, did wrongfully, carelessly, negligently and unskillfully run a detached part of said train back to and against another part of said train, striking the same with great force and violence and then and there and thereby threw the said Wm. H Roblin off said train to and upon the ground, and crushed bruised and mangled him, thereby giving to the said Wm. H Roblin, divers hurts, concussions, bruises and mortal wounds upon his body and also internal injuries, of which said mortal wounds and injuries the said Wm. H. Roblin on the twenty-seventh day of March, 1888, died."
The evidence in substance shows that: The train left St. Joseph after night and ran down to Sugar Lake, twenty-four miles south of St. Joseph, where the engine took water. In pulling out from this station the train broke in two, and the engine and twenty-seven cars ran down as far as Bean Lake, the conductor and head brakeman being on this portion of the train. After they had started to pull out of Bean Lake station the conductor discovered that he had lost a portion of his train and signaled the engineer to stop and back up to recover the lost cars. Believing that it was not proper to back in search of the lost cars when he had so many cars attached to his engine, Tracy pulled down to South Iatan, where he wanted to set the cars in on the side track and go in search of the lost cars with the "light engine." This the conductor refused to do, asserting that "he was in charge of the train and it had better be backed up, that we would delay No. 4, -- that is a passenger train that was almost due at Sugar Lake, -- said we have to go back quick and get this train." Tracy then proceeded to back his engine and the twenty-seven cars north in search of the detached portion of the train. The conductor got on top of the train and went to the forward car in the backward movement, so as to observe the track. The head brakeman was also on top of the train near the engine. It was then about 4 o'clock in the morning and very dark, and the movement was made by Tracy in obedience to signals given to him by the conductor through the head brakeman, who received and reported the signals given by Conductor Roblin from the front end of the train. The distance from South Iatan to Sugar Lake station is three and one-half miles. In making this backward movement the main portion of the train in the darkness came suddenly upon the detached cars at a point half a mile south of Sugar Lake, and the collision occurred which resulted in Roblin's death. The plaintiffs placed Mr. Tracy upon the stand as their witness, and he testified that at no time during the backward movement did he receive any signal to slow down the speed of his engine, or to stop; and that he did not run fifty feet after the last signal to back up was given him, before colliding with the other part of the train.
Tracy, the engineer, introduced by plaintiffs, testified that he had had over four years of continuous experience as a fireman on the Chicago, Burlington & Quincy Railroad, and three months on the Missouri Pacific Railway; that he had frequently run engines on occasions when his engineer was taken sick on the run. He had made several trips over the defendant's road, prior to the accident, in the capacity of an engineer, and continued in its service for a year and a half after this accident. The evidence further showed that engineers are selected by promoting men who had served three or more years as firemen, and that Mr. Chase, the defendant's master mechanic, at the time he employed him, examined Tracy thoroughly as to his knowledge of an engine, as to the management of a locomotive by an engineer, and as to his general knowledge in respect to signals and time cards in train service.
On the question of the competency of Mr. Tracy, but one of the crew was examined, Jacob Little. He was the rear brakeman on the train, and was with the rear portion that was left at Sugar Lake when the train broke in two. He testified that he went north about a half a mile to Sugar Lake station in order to flag No. 4, a passenger train that was then about due, and from that position saw the lights of the lanterns of the men on top of the cars composing the front portion of the train, as they were returning to pick up the lost cars; that he saw the signals given directing the train to stop; that he could not see the cars; that he did not know the rate of speed at which they came back, and that he was too far away to hear the noise of the collision that occurred. Little testified that Tracy did not understand the signals that were given him, and did not obey them, but he further testified that he had never run with Tracy before that trip, and that his opinion was based entirely upon the signals which he saw given by the men on top of the cars just before the collision occurred.
Barada, who came down with the wrecking train to pick up the wreck the next morning, was the only other witness introduced by plaintiff on this point. After the wreck was picked up, such of the cars as could be hauled were fastened together with chains and went on to Kansas City under Barada's charge, who acted as conductor for that trip. Barada's regular duties were those of a brakeman, and this was the first occasion on which he acted as conductor. There were but two cars in the train that had draw bars and links and pins for the purpose of coupling them. The use of the chain produced a great deal of slack. Barada testified that from his observation of Mr. Tracy on that trip to Kansas City, he did not think him a competent engineer "because he did not know ten miles an hour, from twenty-six." Barada never saw Tracy before that day and never ran with him afterwards.
Affirmed.
H. S Kelley for appellant.
(1) The court erred in giving the...
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