| Mo. | Apr 15, 1883
This is an action by which plaintiff seeks to recover the statutory penalty of $5,000 for the death of her husband, Chas. W. Blessing, which occurred under the following circumstances:
Blessing was an engineer in the employment of defendant, and, on the morning of the 28th of November, 1877, left Moberly in charge of his engine with a train of which one Austin was conductor. West of Moberly, at coal mine No. 2, they passed a work train under the charge of one Johnson. At mine No. 2 there were side-tracks, but there was no telegraphic communication between mine No. 2 and 'Kansas City, the western terminus of defendant’s road, or Moberly, or any other station on the road, which fact was known to Blessing. Austin’s train went to Brunswick, forty miles west of Moberly, and at three o’clock that same afternoon, Austin and Blessing started back to Moberly on another train, an extra. Before reaching Huntsville, a station six miles west of Moberly, and two miles west of mine No. 2, they received an order from the train dispatcher at Kansas City to run to Moberly, avoiding regular trains, and to look out for Johnson between mine No. 2 and Huntsville. They arrived at Huntsville, and after whistling as many as twenty times to notify Johnson, they pulled out for Moberly, and when going around a curve, between Huntsville and mine No. 2, without sending flagmen ahead or taking any other precaution to avoid a collision with Johnson’s train, except to run their train at a slow rate of speed, six miles an hour, the trains collided with each other about 5:40 o’clock p. m., and Blessing was killed.
Johnson testified that he had no orders in regard to this extra train, and that he should have been notified of it; that his waiting orders were between Huntsville and
The court gave an instruction to the effect that on the evidence plaintiff could not recover, and that presents the only question for consideration.
Evidently the injury to plaintiff was mainly, if not entirely, occasioned by the neglect of the train dispatcher at Kansas City to notify Johnson of Austin’s extra train, if such was his duty. If it was his duty, Austin and Blessing had a right to act on the supposition that such notice had been given, and would not be held to the same care as if they had known it had not been given, or that no such duty rested upon the train dispatcher. If Johnson had known that Austin’s train was coming east, and had run as cautiously as Blessing was running, six miles an hour, the collision would not have occurred, if he had used the same precautions to avoid it which he did employ when he discovered Austin’s train. He could, and probably would have discovered the approach of that train at the same point as when running twenty miles an hour, and it is in proof, that after he discovered Austin’s train, he reduced the speed of his train from twenty to ten miles an hour.
Whether Austin and Blessing were prudently running their train, is to be determined from all the facts aud circumstances of the case, and inasmuch as we cannot, on the evidence, say they were not managing their train prudently, there would have been error in the instruction given, but for another question involved. If the death of Blessing was occasioned by the neglect or carelessness of a fellow servant, the defendant is not liable ; and in McGowan v. St. L. & I. M. R. R. Co., 61 Mo. 528" court="Mo." date_filed="1876-01-15" href="https://app.midpage.ai/document/mcgowan-v-st-louis--iron-mountain-railroad-8005224?utm_source=webapp" opinion_id="8005224">61 Mo. 528, this court,