85 Mo. 599 | Mo. | 1885
This action was begun, and trial had, in the circuit court of Buchanan county, Missouri. The plaintiff, Michael Neilon, was a brakeman employed by the defendant, and at the time of receiving the injuries sued for, was acting as head brakeman on one of defendant’s freight trains, which was then in charge of a conductor named La Brunerie. Neilon had been acting as such brakeman on La Brunerie’s train for two weeks, during which time he had made four round trips between Hopkins and St. Joseph. Before, or about the time of the arrival of the train in question, at Amazonia, said ..conductor notified plaintiff that two cars were to be set
“ That while said train was backing to detach and leave part of its cars, one Alfred La Brunerie, who was conductor of said train, and had charge and control thereof and of defendant’s employes at work thereon, carelessly, and without notifying plaintiff, pulled the pin from the coupling between the rest of the train and the cars to be detached, although it was no part of his duty to pull said pin, and the plaintiff, while walking-along the top of said train, in the discharge of his duties as brakeman thereof, and about stepping across the coupling from which said pin had been removed without his knowledge, at the slowing of the engine was, by reason of said removal of said pin, and the consequent (but unexpected, to him) parting of said train, precipitated upon the track, run over, and injured as aforesaid; that said La Brunerie was careless, unreliable, and incompetent to discharge the duties of conductor, as defendant well knew before, and at the time of placing bim in charge of said train, and that defendant, well knowing him to be thus careless, unreliable and incompetent, had wilfully and negligently retained and continued him in its employ, and placed him in charge of said train as aforesaid.”
Defendant’s answer was a general denial, except as to its incorporation and plaintiff’s employment and service as its brakeman, and set up further contributory negligence on part of plaintiff, which was denied generally in the reply of plaintiff. Under our view and disposition of the case, it is not necessary, we think, to set out the evidence in the cause, It will be noticed, and
An objection is made, in the first instance, to the sufficiency of the petition. It contained an allegation to the effect, it will be observed, “that it was no part of the conductor’s duty to pull the pin,” and it is contended for appellant that under said allegation, as said act did ■not pertain to the duties of his employment as conductor, no cause of action was stated against the defendant. For the respondent, it is contended that when considered in connection with the other allegations in the petition, as well as with the balance of the allegation ■of which it forms a parenthetical clause, or subordinate part, it does not charge that it was no part of his duty ■as conductor to pull a pin under proper circumstances, but that it simply avers that it was no part of his duty at that time and under those circumstances to pull the •pin without notifying the plaintiff. We do not think it very important or material which, if either, of these views may be correct. It was not the act of pulling the pin that caused the plaintiff’s injury. This is conceded. It was the failure to notify plaintiff of said act that was the procuring cause of the injury, and it is not admitted or averred in the petition that this was no part of the •conductor’s duty nor within the scope of his employment. On the other hand, the petition further alleged that said conductor carelessly and without notifying plaintiff, pulled the pin, whereby the train unexpectedly parted, and thereby he was precipitated upon the track, run over and injured. It charges, also, as we have seen, that said conductor was incompetent and unreliable, and that defendant employed and wilfully and negligently retained him in its employ as conductor, well knowing ■that he was careless, unreliable, and incompetent. These
It is charged in the petition that defendant well 'knew before and at the time of placing La Brunerie in charge of the train that he was incompetent, but there was no evidence to sustain. said averment and that question was taken from the jury by appropriate instructions. The substantial controversy in the case is as to the character of La Brunerie’s act, whether he was negligent or • otherwise in pulling the pin and failing to notify plaintiff, and as to the incompetency of said conductor and his retention by the defendant, with notice and knowledge thereof. As to the misconduct of La Brunerie upon this occasion we think little need be said. He was the officer and servant in entire control of the train, and men employed thereon. His act was not that of a. volunteer. While it was not his duty, usually, to uncouple the cars, he might rightfully and' lawfully do so. Mr. Barnard, in his testimony, says: “Ordinarily, brakemen ought to couple and uncouple cars; when order is given to head brakeman it is his duty to uncouple cars ; don’t think conductors ever uncouple cars after ordering brakemen to do so.” In this instance, however, La Brunerie gave Neilon, who was the head brakeman, the order to uncouple and set out the cars, and proceeded, ■almost immediately and directly, to pull the pin, and then failed to notify plaintiff. This was negligence and -carelessness, to say the least, and on this occasion, as upon another to which we shall refer again, directly, “ he did not seem to have (as the .superintendent then said), a clear understanding of his duties in giving his • orders to his men.” It is plain, we think, that there was evidence in the case sufficient to authorize and require ■the trial court to submit to the jury the issue whether
A brief statement of portions of the evidence material and pertinent to this part of the inquiry will be sufficient. La Brunerie’s experience as a freight train conductor consisted of his service as such for the six weeks next preceding the accident, during two of which, as we shall shortly see, he was suspended. The plaintiff, it will be remembered, was injured October 8, 1877. Prior thereto and to plaintiff’s service with him, and about the last of August or first of September, another accident had happened to La Brunerie’s train at Savannah, whereby the defendant’s property, engine and cars had been injured. Within a day or two thereafter, General Superintendent Barnard instituted and conducted an examination into the causes of said accident, having La Brunerie and others to appear personally before, him. The witness Kane, who was then a brakeman on La Brunerie's train, testifies that he then “told Mr. Barnard that La Brunerie was not capable of running a train; that he was in the habit of drinking and sleeping on duty.” It is proper to say that Mr. Barnard had no recollection of such statement being made to him. La Brunerie, in his account of said accident, at that time sought, it seems, to cast the blame therefor on the brakeman, Kane, but when called as a witness, and put under oath, he stated upon this trial that he was to blame for the accident at Savannah, and that he was drunk and asleep. As a result of said investigation by the superintendent, Kane was discharged and La Brunerie suspended, or “laid off,” for two weeks. Mr.. Barnard testified that he suspended La Brunerie because he thought La Brunerie should have known what his brakemen were doing, and should have been on the front end of his train, and “because he did not seem to have a
Competent men, it is true, may be, and are sometimes,, forgetful or negligent, and, it may be conceded, as claimed by appellant, that a single act of negligence does not prove, or, by itself, even tend to prove incapacity; yet,, tinder the evidence, this hardly meets the requirements of the present, case. The conclusion arrived at by Barnard, the suxcerintendent, after investigating the cause of said' former accident, and after a personal examination of La Brunerie himself, as to his conduct at that time, involves, we think, something more than a mere omis- ' sion on his part on that occasion. If, as stated by Barnard, La Brunerie “did not seem to have a clear understanding of his duty in giving orders to his men,” it would seem to imply such' want of capacity and intelligence as to disqualify him for the safe discharge of the important and hazardous duties of his position as conductor. There was, however, opposing evidence in other statements of said witnesses and from other witnesses, on behalf of defendant, making, such a conflict of testimony as justified the submission of the same to the jury for then- determination, as before stated.
Instructions, four in number, were given for plaintiff, and seven for the defendant,, presenting the issues,' we think, with unusual clearness and precision, and fairly, and, perhaps, even favorably, to the defendant. A num
Michael Neilon, the original plaintiff in this cause, having died after the cause was appealed to this court, ;and the case having been duly revived in the name of - Smith, as the legal representative or administrator ■of said deceased, and it appearing to the court by stipulation of parties, on file in this court, among other things, that said Michael Neilon, in his lifetime, on the record, when the judgment in this cause was entered, assigned said judgment to Silas Woodson and Benjamin R. Vineyard, they, the said Woodson and Vineyard, on their motion, are, by the order of this court, hereby substituted as such assignees as parties plaintiffs in this action, under and by virtue of section 3671 of the Revised Statutes of 1879.
Por the reasons hereinbefore stated, the judgment of the circuit court is affirmed.
