Roblin v. Kansas City, St. Joseph & Council Bluffs Railroad

119 Mo. 476 | Mo. | 1894

Sherwood, J.

The only material question at issue in this case is, whether Tracy was incompetent for the position to which he had been appointed, that of engineer. His examination on the general topics connected with the duties incident to that kind of employment seems to have been thorough. He stated to Mr. Chase that his service as fireman on the C., B. & I., in Illinois, was continuous for four years, under a Mr. Colvin, master mechanic, who was acquainted with Mr. Chase, as a railroad man, and Tracy referred the latter to him for information regarding his qualifications. Whether Chase made inquiries of Colvin touching Tracy’s capacity as engineer, does not appear; but, as already seen, it does appear that from three to five years’ service as fireman is all that is customarily required of a fireman before he is promoted to the position of an engineer and given the charge of an engine. And Tracy’s testimony shows that frequently, while engaged as fireman, he had run engines for his engineer, when the latter was taken sick.

But, aside from Tracy’s testimony, whenever the law imposes a duty on another, it presumes that such duty was properly performed. “Therefore, the mere fact that a fellow-servant is incompetent, * * * does not tend even prima facie to establish negligence on the part of the master in- employing him, but the burden in all such cases is upon the servant seeking a recovery to establish the fact that the inf try resulted to him because the master did not exercise reasonable and proper care in these respects, or either of them, and this must be established as a fact in the case, and can not result as an inference from the circumstances that the servant * * * was in fact incompetent * * * Wood’s Master and Servant [2 Ed.], sec. 419.

In this case the conductor and engineer were fellow-servants. Beach on Contrib. Neg. [2 Ed.], see. 334,' and cases cited. So that it will be presumed that Chase made all proper. inquiries of Colvin before he gave Tracy an engine, and this he had ample opportunity to do, owing to telegraph facilities.

No importance is to be attached to Little’s testimony, as he was half a mile from the scene of the collision; the night was dark, and, though he says he saw the signals, yet he could not see the cars; could not tell the rate of speed at which they came back; was too far away to hear the noise of the collision when it occurred; and, besides, he was in the middle of the track, and behind the end of the train that had been left on the track, and he testified he saw no “slow down” signal. In such, circumstances he could not tell whether the signals he saw given were obeyed or not, and Tracy says they were obeyed.

Moreover, the conductor, Eoblin, was in charge of the train, and the engineer was bound to obey his orders. If this be true, then if Tracy obeyed the orders of his conductor, and he says he did, and this is uncontradicted, and such obedience resulted in Eoblin’s death, certainly no action would lie against either Tracy or their common master, the defendant company, even conceding that Tracy was in fact incompetent.

For these reasons, and under the authorities cited, the trial court committed no error in holding the demurrer to the evidence of plaintiffs well taken.

All concur.