Seago v. New York Cent. R. Co.

• Citation: 155 S.W.2d 126
• Decision Date: 12 June 1941
• Docket Number: No. 37406.,37406.
• Parties: SEAGO v. NEW YORK CENT. R. CO.
• Court: United States State Supreme Court of Missouri

155 S.W.2d 126

SEAGO v. NEW YORK CENT. R. CO.

No. 37406.

Supreme Court of Missouri, Division No. 1.

June 12, 1941.

Rehearing Denied July 25, 1941.

Motion to Transfer to Court in Banc Denied October 30, 1941.

Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.

Action under the Federal Employers' Liability Act by Alice Seago, administratrix of the estate of William E. Seago, deceased, against the New York Central Railroad Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Mark D. Eagleton and Wm. H. Allen, both of St. Louis, for appellant.

Wilton D. Chapman, of St. Louis, for respondent.

BRADLEY, Commissioner.

William E. Seago was a New York Central conductor and while on duty about 7:30 p. m. (after dark), January 17, 1938, was run over and killed by his train in the Wann yards, East Alton, Illinois. As administratrix of the estate of deceased, plaintiff, his widow, brought this suit under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, to recover $65,000 damages for the alleged wrongful death of her husband. Verdict and judgment went for defendant. Motion for new trial was overruled and plaintiff appealed, and assigns error on defendant's instructions 4 and 6.

It was admitted that the cause was properly under the Federal Employers' Liability Act. Plaintiff alleged several grounds of negligence. The answer was a general denial. The cause was submitted on the alleged violation of a rule and custom "that an engine and train should not be started and moved until a proper hand lantern signal was given by a member of the switching crew for such start and movement."

The train crew consisted of the deceased conductor, and Emery M. Lucier, engineer, Clarence Wenzel, fireman, and Louis Michel and C. H. Laughlin, brakemen.

The tracks in the yards extended generally north and south. The lead track led off, at north end of yards, from the east side of the main track and curved to the east like, and then extended south. Beginning at the north end of the lead track, switch tracks 1 to 8, inclusive, led off from the west side of the lead track. There were 8 switch stands, all on the east side of the lead track, by which stands the 8 switch tracks were controlled. This arrangement placed switch track No. 8 next to the lead track, while No. 1 was next to the main track on the west.

The train involved was composed of the engine, tank, and about 20 cars. The engine backed north on switch track No. 8, pulling the 20 cars in front of it, and the intention was to go upon the lead track where switch track No. 8 led off from the lead track. The engineer and fireman were each in his proper place, the engineer on the right (west) side of the backing engine and the fireman on the left (east) side. While the train was backing north on switch track No. 8, the brakemen were in the engine cab until near switch stand No. 8; deceased was on the pilot "between the box car and the engine." There was an Alton train (C. & A.) on the lead track near switch No. 8, and deceased's train stopped a short distance south of switch No. 8 for the Alton train to clear. There was a head light on the rear of the tank, but when the engine stopped the head light was turned off. When the engine stopped near switch No. 8, the brakemen got off and went forward to line the switches so the train could continue backing north on the lead track after it came on that track from switch track No. 8. From the stop near switch No. 8, and after the head light was turned on, the train started up and moved slowly, and while so moving deceased got on the iron step or stirrup at the northwest corner of the tank. The train, after entering the lead track, backed north, but on account of the Alton train, stopped again at or near switch No. 4, and deceased got down from the step and walked a few feet forward. The engineer, defendant's witness, testified that while stopped, at or near switch No. 4, he got a signal from brakeman Laughlin, for the backup movement that resulted in Seago's death. And the engineer said that he also got a backup signal from Seago for this movement.

Laughlin, a witness for defendant, testified that he was up at switch No. 2; that he lined No. 2 (the switch stand was east of lead track); that he then, in order to get on the engineer's side of the track, walked over to the west side of the lead track and gave a backup signal with his lantern; that when he gave the backup signal, the engineer turned on the bell and the head light and started backing up; that the engine backed up "in the neighborhood of fifteen feet" before it stopped. Laughlin said that when he gave the backup signal he did not know whether he was then visible to the fireman.

The engineer testified further that at the time he got the backup signal from Laughlin and deceased, that he, deceased, was "about two or three feet ahead of the tank. * * * When he got down from the side of the tank he walked north. The last time I saw him do anything was when he gave me a signal. * * * I had my eyes on him from the time he got off the side of that tank until he walked north three or four feet. When he was walking he was off to one side a little bit, and he stepped over a little to the right of me, just a little bit. The last time I saw him his body was in such a position that it was three or four feet north of the west side of my engine, which would be the right side and immediately in front of that. From the darkness that prevailed, I could not tell whether he was facing me or whether his back was turned toward me. Nor could I tell at that time whether he was standing still or walking. He had been standing still there for quite a bit, waiting for that train (Alton) to come in. At the time he gave that backup signal, which caused the engine to move north a short distance, I could not tell whether he was moving or standing still. I was watching the man ahead of me for a signal, and when he gave it Seago also gave one too." The engineer said that from the startup his engine moved "one or two miles an hour", and that, when he had moved 8 or 10 feet, "all at once the air was set on me."

Defendant's witness, brakeman Michel, at the time the train started up on this occasion, was a short distance north of it. He testified: "When I turned and looked at Mr. Seago he was in the act of falling; falling from the west to the east, in front of the engine (rear of tank). At that time I judge I was about twenty feet from him. He appeared to me like he was higher than the ground because his lamp was up high in the air, and when I seen him he was falling; the lantern was going down; his left hand was going down. * * * After seeing Mr. Seago falling, I stopped the train. I jumped in front of it and pulled the angle cock. That throws the train into emergency. The engine was in motion at the time and wasn't going over a mile an hour, to the best of my knowledge. I seen Seago's light go up in the air and he was falling, on his way down. * * * When I looked at him, at that very second he was in the act of falling. He was falling this way, and his face toward the engine. The side of his body was going toward the southeast." Michel said that he saw "this other man", meaning Laughlin, as we understand, give the backup signal; saw the light go on; heard the air of the engine release, which meant that the engine was starting up. But Michel said that he did not remember which side of the lead track that Laughlin was on when he, Laughlin, gave the backup signal. Plaintiff took Michel's deposition and in the deposition he said that Laughlin was on the east side of the lead track when he, Laughlin, gave the backup signal.

C. F. Sunderland, a witness for defendant, was, at the time Seago was killed, in the Wann yards, as a member of a switching crew of the Alton railroad. Sunderland was standing in the doorway of a shanty office in the yards.

"Q. Tell us what you saw happen. A. Michel was standing talking to me and I glanced up and saw Seago's lantern go up in the air.

"Q. Now, where was Seago when you saw him? A. He was on the back footboard of the engine (rear of tank). * * *

"Q. Now, he was standing on that footboard. Now, what did you see happen then? A. After his light went up in the air he fell.

"Q. And what happened then? A. I hollered at Michel that Eddie was under the engine.

"Q. And what took place then? A. Michel ran from where he was talking to me, across in front of the engine (rear of tank) and opened the angle cock on the engine.

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