Train crew charged with manslaughter after wreck

The following is a re-print of a past column by former Advertiser columnist Stephen Thorning, who passed away on Feb. 23, 2015.

Some text has been updated to reflect changes since the original publication and any images used may not be the same as those that accompanied the original publication.

Last week, I described the head-on collision of Jan. 27, 1909 between two freight trains on the Grand Trunk line, about half way between Clifford and Harriston, which resulted in the deaths of two railway employees. 

This week’s column delves into the aftermath of this crash.

As nearly as can be determined, the two trains collided at 11:26am. The news travelled very quickly. The weekly papers, published on Thursday, carried brief accounts and daily papers across the country carried full stories the next day.

The Grand Trunk immediately called for an internal investigation, which took place at the superintendent’s office at Stratford on the Friday morning following the crash. This was a closed session, with the press excluded.

One by one, the railway “brass” called members of the crew of train 584, which had taken the track to Southampton rather than Owen Sound in error, to explain their mistake. This way, officials could compare the stories for consistency and evidence of collusion. At the end of the day, no one was yet talking. Railway officials did not want to prejudice the coroner’s inquiry, scheduled for the following Monday in Harriston, and the crew members, under advice from lawyers, remained silent lest they incriminate themselves.

Several hundred people jostled one another on Feb. 1 at Harriston’s town hall for a glimpse of the proceedings when the inquiry opened at 9:30am before Coroner H.R. McCullough. There were lawyers representing the families of the two deceased crew members, Murmar Root and James Smith, and the six-man crew of Train 584. The Grand Trunk brought in a solicitor from the railway’s Montreal head office.

Following the selection of a jury, headed by retired high school teacher James McMurchie, the inquiry recessed until 1:30pm pending the arrival of crown attorney Henry Peterson on the morning train from Guelph.

The testimony corrected some of the rumours and speculation that had been circulating over the previous five days. Dr. S.M. Henry of Harriston insisted that both men certainly died instantly from their injuries, an opinion corroborated by Dr. Stewart of Palmerston. Some rescuers had told reporters that the men lived for some time after the crash.

Next was Allan Eby, conductor of southbound Number 311, on which the two trainmen died. He stated that his train left Southampton at 7am, passed Clifford at 11:17, and hit Number 584 at 11:26am. He had been in the cupola of the caboose, and had not seen the oncoming train due to the blowing snow. When he felt the jolt of the collision, he thought his train had derailed. The engineer of Number 311 could not testify because he had not yet recovered from his injuries.

Next up was Matthew Fleming, conductor of the train that had taken the wrong track. He stated that his train had left Stratford at 5:45am with 12 cars, and after considerable switching, left Palmerston at 10:05am with 28 cars. Five of these were refrigerator cars destined for the Harriston Packing House.

The Packing House siding was located at the northwestern edge of Harriston. To place the cars there, the locomotive had to cross the CPR line and pass through the switch where the Owen Sound line branched to the right from the Southampton line. Locomotive engineers had to whistle their signals. 

A single long blast was the request for the signalman to move a semaphore signal to the “proceed” position if there was nothing to block the way on the CPR track. Another signal, four short blasts of the whistle, was the signal for the Grand Trunk’s switchman to open the switch for the Owen Sound line.

Conductor Fleming stated that his engineer had blown both signals, spotted the five cars on the siding, then returned to the Harriston station to pick up the remaining 23 cars of the train.

When the train left Harriston, supposedly for Owen Sound, Fleming and all three of his brakemen were in the caboose, wolfing down their dinner. This was a clear violation of the operating rules. One brakeman was to be in the locomotive, and another was to stand on the platform of the caboose to be sure all was in order as the train passed through the switch.

Fleming said his crew had just finished eating when the emergency brake went on, jolting the train to a stop. He walked forward to see what the trouble was, and encountered crew members of the other train. It was only then that he realized his train was on the wrong track. He then walked back to Harriston to report the wreck. He blamed his engineer for the crash, stating that he was 23 cars behind and couldn’t see or hear anything.

James Scott, the switchman, was sworn in next. He swore that the Engine 584 did not whistle the four blasts for the Owen Sound line when it approached. Though he realized that this was the Owen Sound train, he stated that he was required to act only on the signals blown by the engineers, because he had no direct communication with the station master. Unless signaled otherwise, the switch was always set to the Southampton line. Sometimes, he added, Owen Sound trains would proceed a short distance up the Southampton line to let a southbound train from Owen Sound pass. Therefore, he did not think it unusual not to hear the four blasts from this train. He was surprised to see Number 584 accelerate once it passed through the switch.

Cornelius Kennedy, engineer of Number 584, accepted responsibility for the crash. He stated that he was not a regular engineer on this line, but rather a spare, and had not been on this line for over a year. He admitted that he did not signal for the Owen Sound line.

A long list of further witnesses, including crew members and the station staff at Harriston, offered little additional information. Trainmaster C.G. Bowker of Stratford clarified details of the railway’s rule book for the jury.

It was after midnight when coroner McCullough concluded the testimony and sent the jury to its deliberations. When they returned, the jury blamed the two deaths on engineer Kennedy’s failure to signal for the correct track, and on conductor Fleming’s neglect in seeing that his brakemen were properly placed when the train passed through the junction. As well, the jury assigned blame to the Grand Trunk for placing Number 584 in the care of an engineer who was not sufficiently familiar with the line.

The day following the inquiry, the Grand Trunk fired Kennedy, Fleming and fireman Frank Lane. Their troubles were only beginning. 

Two days later, on Feb. 4, Crown Attorney Henry Peterson laid charges of manslaughter against Kennedy and Fleming. A constable brought them from their homes in Stratford to Guelph. At their first hearing, Peterson argued against bail for the two. Their lawyer had to appeal to the Attorney General who agreed to $4,000 bail for each of them.

Kennedy had been shaking at the coroner’s inquest, and he was reported to be near nervous collapse in the days following. Though older and more experienced, Fleming as well was filled with sorrow and remorse. The fact that they had lost their livelihoods, coupled with Peterson’s harshness in trying to prevent their release on bail, began to turn public opinion to a position of sympathy for the two men.

A couple of days later, Peterson laid further charges against fireman Frank Lane. At the preliminary hearing on Feb. 12, Crown Attorney Peterson called most of the witnesses who had appeared at the coroner’s inquest on Feb. 1. Nothing new emerged.

The magistrate committed Kennedy, Fleming and Lane to appear at the High Court sittings on Feb. 22 on charges of manslaughter. A couple of days before the court date, Peterson laid charges of criminal negligence against the three brakemen on the crew.

Judge Riddell reviewed the case against the railway men on Feb. 22, and got down to the business of selecting a jury the next morning. This took some time, because the prosecution attempted to disqualify working men. Labour unions in Guelph were in their ascendancy in 1909, and the prosecution believed that working men would be unlikely to bring in a guilty verdict on their fellows. Consequently, farmers dominated the jury.

When the trial began, witnesses elaborated on the evidence first presented at the coroner’s inquest, but in much more detail. One new point was that the crew had received permission to change trains with an Owen Sound crew at Alsfeldt siding, north of Drew, so that they could return home that night for the trainman’s ball in Stratford. That explained why the conductor and the three brakemen were in the caboose eating dinner, rather than at their assigned duties – they wanted to have their meal before switching trains.

Fireman Lane testified that he was having problems with the fire in the engine, with low steam pressure, bad coal, a firebox with poor draft and a very heavy train. He was too preoccupied to notice any signals blown on the whistle.

The testimony resumed at 9am on Feb. 23, and continued until early evening, with breaks for dinner and supper. Crowds overflowed the court for the entire day and into the night. Judge Riddell wanted to push ahead quickly with the case. The prosecution and defence lawyers then addressed the jury, and the judge began his hour-long address to the jury at 9pm, strongly urging guilty verdicts against the three men.

The jury then retired. At 1am they returned to the court, telling Justice Riddell that they could come to a verdict in only one case. He gave them even stronger instructions to produce guilty verdicts.

It was almost 2am when the jury returned again, with guilty verdicts, and very strong recommendations for mercy. The judge deferred sentencing until March 6. In a lengthy statement at the time of the sentencing, Judge Riddell noted this was the most difficult case for him in his time on the bench. He had received a number of petitions, including one from the railway men in Stratford, asking that all charges be dismissed.

Engineer Kennedy received a sentence of eight months in the Guelph jail. Conductor Matt Fleming and fireman Frank Lane drew suspended sentences. The judge showed a great deal of interest in Lane’s case, on account of his youth. He asked if Lane had applied to be rehired, and offered to write a letter of support to the railway on his behalf. Judge Riddell concluded the case with a lecture to the men on their duties.

The accident happened, he declared, because each member of the crew believed that the others were attending to their duties, and therefore could neglect their own. The result had been a bad crash, and the deaths of two innocent men.

*This column was originally published in the Advertiser on Oct. 13, 2000.