Talbert v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 21 May 1926
• Docket Number: No. 24026.,24026.
• Citation: 284 S.W. 499
• Parties: TALBERT v. CHICAGO, R. I. & P. RY. CO.
• Court: Missouri Supreme Court

284 S.W. 499

TALBERT v. CHICAGO, R. I. & P. RY. CO.

No. 24026.

Supreme Court of Missouri, in Banc.

May 21, 1926.

Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge.

Action by Rollin E. Talbert, administrator of the estate of Clyde N. Lillard, deceased, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Luther Burns, of Topeka, Kan., and Guthrie & Conrad and Hale Houts, all of Kansas City, for appellant.

Rosenberger, McVey & Freet, .7. C. Rosenberger, and Dupuy G. Warrick, all of Kansas City, for respondent.

HIGBEE, C.

This is an action for damages for the killing of Clyde N. Lillard, a single man, aged 23, brought in December, 1914, by the administrator of his estate, under the federal Employers' Liability Act (U: S. Comp. St. §§ 8657-8665), for the benefit of his dependent mother, his only surviving parent. Lillard was a brakeman on a local freight train on a branch line of defendant's railway, and was killed on January 8, 1914, at Walter, Okl., while engaged in interstate commerce; the company being an interstate commerce carrier. The case was tried to a jury at the January term, 1922, resulting in a verdict for plaintiff for $10,000 on the first count, and $2,000 on the second count. The first count charges negligence as follows:

"Said injury was sustained as follows: At the time he sustained said injury said Lillard was employed as a brakeman on defendant's north-bound local freight train No. 782 and was discharging his duties as such in the switching yards of defendant at the town of Walter, Old. Upon the arrival of said train at Walter on said day it became necessary for the train crew of said train of which said Lillard was a member to do certain switching; that is, to set out certain cars, to pick up certain other cars, and to rearrange the order of said cars in said train. To this end the cars were pulled out upon the main line beyond and north of a certain switch in said yards and then said cars were backed or `kicked' south over and upon said switch so as to distribute said cars upon the various track§ leading from the main line. Said operation of kicking was accomplished by detaching certain cars from the rest of the train and engine and by the engine then giving said cars a shove or push, causing them to run by their own momentum over said switch and upon the track desired. At the time in question certain cars had been kicked south from the main line over said switch and upon what was called the passing track, and said cars had just come to a standstill on said passing track when a certain ballast car was also kicked upon said passing track, with the intention that it should couple by its own momentum with said other cars on the passing track. In order that the ballast car would couple with said other cars it was necessary for the knuckle of the coupler thereon to be open when the cars should come together. While said ballast car, kicked as aforesaid, was slowly moving south on said passing track toward said cars to which it was to be coupled said Lillard, in the discharge of his duty and in the exercise of ordinary care, stepped upon the roadbed and track between the rails for the purpose of adjusting and opening said coupling knuckle on said ballast car, and just as he had done so and while he was in the act of stepping off the track he, by reason of the dangerous, unsafe, and defective condition hereinafter described of defendant's said roadbed and track, was caused to lose his footing and to fall, and before he could recover his footing he was thrown down by said moving car, thrown under its wheels, and so mortally mangled and maimed that he died about one hour afterward. Said injury was directly caused by the careless and negligent construction and maintenance by defendant of its track and roadbed at this particular place where said Lillard fell and was injured, whereby said track and roadbed had through defendant's negligence become defective, unsafe, dangerous, and insufficient, in this, that the ties and rails of the track at said place were laid upon the soil without any ballast under, over, or between the ties, and that defendant negligently permitted the ties to become buried and sunken about six inches below the surface of the ground, and defendant had negligently permitted the soil between the ties to bulge upward so as to create ridges or hummocks of loose, spongy soil reaching almost as high as the top of the rails and extending across the track, with depressions between said ridges, and that the surface of said track and roadbed, while apparently hard, firm, solid, and sufficient to sustain a man's weight, was in reality of loose and spongy soil, rough and uneven, deceptive in appearance, and afforded a treacherous footing, causing said Lillard when he went thereon to sink therein and causing him to lose his footing as aforesaid; that said condition of said track and roadbed at said place made the same dangerous, deceptive, unsafe, and insecure, which condition was known to defendant or by the exercise of ordinary care could have been known to defendant for a long time before said Lillard was injured, but defendant negligently failed to repair or remedy the same."

The second count "adopts and makes part hereof paragraphs 1 to 5 of the first count," then describes the injuries inflicted on the deceased, and prays judgment for his conscious sufferings.

The second amended answer is: (1) A general denial; (2) a plea of contributory negligence; (3) a plea of assumption of risk; and (4) that the court is without jurisdiction, for that on April 20, 1915, a petition was filed by an unsecured creditor of the company in the United States District Court, at Chicago, praying the appointment of a receiver of the company's property with the usual powers. An order was accordingly made, appointing a receiver and a special master, and an order was made requiring all persons having claims against the company to present and file their claims not later than July 14, 1917, otherwise, they would be barred from participating in the property of the company; that public notice be given of the time and place within which such claims might be proved by publication in a newspaper; that written notice thereof was accordingly served upon plaintiff's attorney of record and publication was duly made; that plaintiff failed to file any claim; that defendant acquired the property and assets in the possession of said receiver and owned by it prior to said receivership under and by virtue of a plan of reorganization approved by said court in said decree; that by said decree the defendant acquired its said property and assets which were subject to the orders of the court in said receivership proceedings; and "that in no event can defendant be made liable for plaintiff's claims herein, since the same was not filed before said Special Master, as was provided in said decree." The answer then avers that to permit plaintiff to prosecute his action would deprive defendant of property without due process of law and deny it the equal protection of the law, in violation of certain sections of the Constitution of the United States and of the Constitution of Missouri, etc. The reply is # general denial, and then proceeds:

"For further reply, plaintiff states that the ballast car mentioned in his petition, at the time plaintiff's intestate was fatally injured, was being hauled and used by defendant in moving interstate traffic, and was not equipped with couplers, coupling automatically by impact, and which car could not be coupled or uncoupled without the necessity of men, including said intestate, going between the ends of the cars, whereby it became necessary for said intestate to go between the cars, as described in plaintiff's petition, all of which contributed to cause said injuries and death, and was in violation of the act of Congress in such case made and provided, and that by reason of the premises the pleas of contributory negligence and assumption of risk set up in defendant's answer are not available to it."

Paragraph 3 denies the right or power of the court to make the decree in the receivership proceedings absolving the defendant from liability for plaintiff's demand. Appellant's statement reads, in part:

'"The evidence was sufficient to show that the roadbed between the rails of the passing track, at the point in question, was uneven, soft, and spongy, substantially as alleged in the petition, and had been in such a condition for some time, and that it was an unsafe footing for one walking in front of a moving car between the rails. The evidence was also sufficient to show that deceased was caused to fall, or be thrown, upon the rail, by reason of the fact that one foot sank into the soft earth of this roadbed; also that he was employed in interstate commerce at the time."

Archie W. Whitehead, who was employed by the company as a section hand at the time of this accident, was a short distance north of the ballast car that ran upon and killed Lillard, and, seeing the conductor's frantic signal and hearing screaming, he ran to the end of the car and, with the assistance of others, pushed it off Lillard's body. Witness was then asked:

"What, if anything, did you do, after you pushed the car off him? A. I stooped down, the blood run out of his mouth, and he couldn't, it looked like, hold his head off the rail, and I stooped down on my knees and took his head in my hand like that [indicating], and sort of held his head up off of the rail.

"Q. I will get you to state, Mr. Whitehead, if Mr. Lillard said or done anything while you were holding his head there? A. Some one asked him how it came to catch him, how did it happen, something to that effect, and he says, `I went to throw the knuckle back and line the drawbar, and my foot sunk in the dirt there, and I stumbled, and it caught me.' Now, as well as I...