Smith v. Wabash, St. L. & P. Ry. Co.

• Decision Date: 21 March 1887
• Citation: 4 S.W. 129,92 Mo. 359
• Court: Missouri Supreme Court
• Parties: SMITH v. WABASH, ST. L. & P. RY. CO.

4 S.W. 129

92 Mo. 359

SMITH v. WABASH, ST. L. & P. RY. CO.

Supreme Court of Missouri.

March 21, 1887.

1. MASTER AND SERVANT — NEGLIGENCE OF VICE-PRINCIPAL.

A train dispatcher, having control of the movements of trains upon a railroad, is, in the performance of his duties as such, a representative of the company, and for an accident occurring through his negligence to another employe subordinate to him, and subject to his orders, the company will be liable.

2. NEGLIGENCE — CONTRIBUTORY.

In such case it is not negligence upon the part of the employe to act, in an emergency, upon the verbal order of the train dispatcher, although a rule of the road required that the specific order should be in writing.

SHERWOOD, J., dissents.

Appeal from circuit court, Livingston county.

L. H. Waters, for plaintiff and respondent. W. H. Blodgett, for appellant.

NORTON, C. J.

This is an action to recover damages for the killing of plaintiff's husband, alleged to have been occasioned by the negligence of defendant, in which she recovered judgment for $5,000, from which the defendant has appealed, and, among others, assigns as error the action of the court in refusing to instruct that, under the pleadings and evidence, plaintiff was not entitled to recover. A proper disposition of this question necessitates a review of the evidence, which shows that freight train No. 84 arrived from the west on the morning of the fifteenth December, 1881, at Stanberry, a station on the line of defendant's road, and the end of a division of said road extending from Stanberry to Omaha; that upon its arrival it was discovered that the caboose belonging to it had become detached, and was left standing on the track four or five miles west of Stanberry; that at the time of the arrival of train 84 another freight train, No. 85, with engine No. 112 attached to it, was standing on the track already made up, and ready to start, going west. The conductor of this train, James F. McCarty, testified that his engine was No. 112; that Mike Bahn was his engineer, and deceased his fireman; that his train was to go out; that he was standing by the train dispatcher's window when train 84 came in, and Luke Ferriter, train dispatcher, said to me: "Jim, you will have to take your engine and go after that caboose, I guess, as it will save time;" that he asked Ferriter about orders, and Ferriter said he couldn't give him orders, as there was no operator at Conception; that there was nothing coming east behind 84, and that he would be perfectly safe in going. Witness then said: "I told him I would go down and see Mike; that, if Mike would go, I would go after the caboose. I went down there, and saw Mike, and we concluded to go after the caboose, and we started off after it promptly, without going back to the dispatcher's office;" that they found the caboose between three and four miles west of Stanberry, coupled on to it and started back, and had gone perhaps a mile when they collided with the switch engine.

Mr. Bondurvant, who at the time of the accident was yard-master at Stanberry, testified as follows: That train 85 was made up, and on the track ready to go west when train 84 whistled for Stanberry; that, when 84 arrived, he discovered there was no caboose on the train; that, as the yard was blocked, he told the engineer of train 84 to go to the round-house, and that he would go after the caboose, the engineer having said he did not think it was a great way back; that he went up to see the train dispatcher, Mr. Ferriter, and the latter asked him if No. 85 had gone, and he answered "No;" that they could not go until Burns arrived; he had charge of the train that came in without the caboose. He then said to him: "Ferriter, hadn't we better go up and get the caboose, as it was lost up the road two or three miles?" that Ferriter asked him if 112 had gone, and he answered "No;" that he did not ask him if they had gone after the caboose, and he understood him to have reference to 112 with train 85; that Ferriter then told him he had better go and get the caboose with the switch engine. He then asked Ferriter if he would need orders, and he said, "No," it was not necessary to have any; that he would protect him while he was gone, and would let nothing out till he got back. He then went down, got on the switch-engine, and started with three men on the engine besides himself. They met 112 about five miles west of Stanberry, backing up with the caboose. The two engines collided and plaintiff's husband was killed. That he did not notice what engine was standing in the yard when he left.

It was argued that the rules and regulations for the movement of trains and engines in force at the time of the accident, and printed on time-table 49, were known and understood by the conductor and engineer in charge of engine 112, by the yard-master in charge of the switch-engine, and by the train dispatcher. Plaintiff also put in evidence the following rules printed on said time-table 49:

"Rule 62. The superintendent and appointed train dispatchers are the only persons authorized to move trains by telegraph.

"Rule 63. No wood, construction, or extra train or engine must be run upon the road without written orders or instructions from persons authorized to move trains.

"Rule 64. All telegraphic orders for the movement of trains will be addressed to conductors and engineers. The operator receiving such an order will read it aloud to the conductor and engineer, and receive their understanding in writing; will repeat it back to the dispatcher precisely as sent. If correctly repeated, the dispatcher will return the signal `O. K.' which must be acknowledged by the operator by a like signal, followed by his initial and office call. The operator will indorse the dispatcher's O.K. on the order, and deliver it to the conductor and engineer to whom it is addressed. In no case will an operator repeat an order until he has first obtained in writing the understanding and signature of both conductor and engineer.

"Rule 65. Should the line from any cause fail to work before the party has received the O. K., he will not deliver such order."

Defendant, on his behalf, put in evidence the following rules printed on time-table 49, and not offered by plaintiff:

"Rule 13. Always take the safe side in cases of the least uncertainty.

"Rule 14. Trains are to be run under the direction of the conductor, except when his directions conflict with rules, or involve any risk or hazard, in either of which cases all participators will be held alike accountable."

"Rule 66. The greatest care and watchfulness must be exercised in sending and receiving orders in regard to running trains. Operators will not trust the delivering of train orders to other parties, but will deliver them in person."

"Rule 68. All orders and messages relating to the movement of trains must be written in full, and no abbreviation used except the telegraph signals `9,' (repeat back,) and `13,' (I understand that I am to ____.)"

The defendant also introduced as witnesses on its behalf J. W. Blanchard, formerly superintendent of the Council Bluffs and Omaha Division of defendant's road; W. J. Durbin, train-master, and for many years a train dispatcher for defendant; Mr. Beggs, a conductor, and Mr. McConnel, a locomotive engineer, both of whom were in defendant's employ at the time of and before the accident. The evidence of these witnesses tended to show that, under the rules as they were understood and acted on by the employes on that division, an engine sent out on the line beyond the switch limits of a station after a caboose would be an extra engine, and only authorized to go on a written order; that the running of irregular or extra trains or engines was done only on written orders issued by the train dispatcher; that time-table 49 was prepared by Thomas McKinock, general superintendent of defendant's road, and issued to the division superintendents, and distributed by them to the employes on their respective divisions; that the engines in question, in their movement after said caboose, were "extra engines," and that under the rules it required that orders for the movement of said engines should be in writing; that the observance of said rule would tend to prevent collisions, and its non-observance would be likely to result in collision; that it was the duty of the employes in charge of the engines in question to refuse to go out upon the road without orders in writing, and that the train dispatcher had no authority to direct them to go except by order in writing, and signing the name or initials of the division superintendent thereto; that, upon receiving the order in writing, (if one had been given in this case,) it would have been the duty of the persons in charge of engine 112 to have gone to the registry book at Stanberry, and registered his engine out, and when he returned to register it in; that the train dispatcher issues his orders in three copies on manifold paper, one of which is delivered to the conductor, one to the engineer, and one he retains, and the order is recorded in a book; that had the train dispatcher given a written order to the engineer and conductor of engine 112, when the yard-master asked for orders to go with the switch-engine, the train dispatcher would not have given him an order until the order to the engineer and conductor of engine 112 had been canceled; but that, had he made a mistake and done so, the yard-master, when he came to register out the...