Relyea v. Kansas City, Fort Scott & Gulf Railroad

Black, J. The plaintiff brought this suit as the widow of Johnson Relyea to recover damages becaqse of the death of her husband, who received injuries while in the employ of the defendant, and from which injuries he died. — 91 — 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 one hundred and thirty-eight miles to Springfield constituted a division. Two through freight trains, known as section 1 and section 2 of number 54, left Thayer for Springfield at two or three 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 number 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 leaveThayer. The distance from Thayer to a station called Burnham is forty-one 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 number-54 was in the rear of section 1, and had fourteen or fifteen cars when it reached Burnham. It took on four-more cars at that place. When it reached Willow Springs the conductor concluded to drop four 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 four forward cars were uncoupled, leaving the fourteen cars standing on the main track. These fourteen cars ran back of’ — 92 — their own momentum towards Burnham, and collided with train 52, which had in the meantime 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 sidetrack, and 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 number 3, coming from the other direction. This order was given to avoid a collision between number 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 number 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 four cars went back after the escaping fourteen 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. From the foregoing statement of the facts it is — 93 — 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 fourteen cars before he cut out the four 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. Railroad, 97 Mo. 113; Dixon v. Railroad, 109 Mo. 413; Parker v. Railroad, 109 Mo. 362; Schlereth v. Railroad, 19 S. W. Rep. 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 — 94 — 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 thrown 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, 106 Mo. 74. In that case a brakeman was injured by-cars standing on a sidetrack. Says the court: “There was no evidence of any negligence in the case of anyone, except the trainmen 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 the defendant is liable for his negligence, he being an agent and vice-principal of the company. This presents, of course, a different question from that which, we have been considering. The first inquiry is, was there evidence tending to show negligence on his part? If not, that disposes of this whole contention. If Conductor Shea was negligent, it was because he knew, or in the discharge of his duties ought to have known, that the fourteen cars had — 95 — not been secured. He was called to the stand by the plaintiff, but not questioned as to the details of the transaction. The only inference that can be drawn from his testimony and the evidence of Austin 4 the head brakeman, is that Shea was standing on the station platform, and there told Short, the hind brakeman, to cut out the four ears and place them on the sidetrack. Short undertook to obey this order, but in doing so failed and neglected to set the brakes on the' •cars left on the main track. There is no evidence in the case tending to show that Shea knew that Short had not secured those cars by setting some of the brakes. The only inference which can be drawn from the evidence is, that he was not with Short when the forward cars were cut out. We then come to the further inquiry whether it was his duty to know whether the other cars had been secured. The proof shows, and there is ni> evidence to the contrary, that it was Short’s duty, as hind brakeman, to look out for his end of the train. It was necessary and proper for the conductor to go to the station, and to give orders as to the movement of the train, but it is out of all reason to say that he- was in duty bound to follow up each brakeman and see how each movement was executed. There is in our opinion no •evidence to show, or tending to show, that the conductor was guilty of any negligence whatever. 3. It is again insisted that the defendant was negligent in that the rear train was run ahead of schedule time by orders from superior officers, without giving the conductor of the forward train notice thereof. The evidence shows that number 52, the rear train, reached Burnham forty-eight to fifty-five minutes ahead of its •schedule time, and that it made the gain in time pursuant to orders from superior officers, without notice to the conductor of the forward train. But it also appears — 96 — that it was no uncommon thing for these trains to run ahead of their schedule time when ordered so to do, and that it was not usual or necessary to notify the conductor of the forward train of that fact. Specials were to be expected at all times. There is no evidence that-number 52 was ordered to run on the time of the forward trains. We do not see any evidence of negligence in this respect. Besides all this the fact that this train was running in advance of its regular time was-not the cause of the accident. The direct and only cause was the negligent act of the brakeman in failing; to secure the cars at Willow Springs. 4. The further point is made that defendant was-negligent in this, that it did not man the forward train with a sufficient number of brakemen. These trains were operated at a slow rate of speed, not exceeding fifteen miles per hour. Three brakemen were allotted to the local freight trains, because it was necessary to-handle cars at the way stations. Two were allotted to the through freight trains; and the proof is that they were sufficient to handle such trains composed of fifteen or eighteen cars. Use could have been made of another brakeman at this particular time, but the fact remains, that two brakemen and a conductor constituted the usual and sufficient crew for all ordinary occasions. There is no proof in the case to justify a conclusion that this train was not manned with a sufficient number of brakemen. It is sufficient to say in conclusion that, from the' evidence produced by the plaintiff;, this accident occurred solely by reason of the negligence of the brakeman. The court, therefore, did not err in sustaining the demurrer to the evidence, and the judgment is affirmed. Bbaoe and Thomas, JJ.,' dissent. The other judges-concur, Barclay, J., expressing his views in nota below by him written. — 97 — [Barclay, J., concurs except that lie does not. wish to be understood as approving the judgment in the Schwab case.]