Armbruster v. Chi., R. I. & P. Ry. Co.

• Decision Date: 16 May 1914
• Docket Number: No. 28927.,28927.
• Citation: 147 N.W. 337,166 Iowa 155
• Parties: ARMBRUSTER v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

166 Iowa 155

147 N.W. 337

ARMBRUSTER

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

No. 28927.

Supreme Court of Iowa.

May 16, 1914.

Appeal from District Court, Iowa County; R. P. Howell, Judge.

Action for damages resulted in judgment against defendant, from which it appeals. Reversed.F. W. Sargent and Robt. J. Bannister, both of Des Moines, and John F. Cronin, of Marengo, for appellant.

Wade, Dutcher & Davis, of Iowa City, and Hubbell Bros., of Trenton, Mo., for appellee.

LADD, C. J.

The deceased, Henry Armbruster, was employed as hostler's helper, and on June 10, 1910, while on a tender, attached to an engine pulled the door or apron of the coal chute down and allowed the coal to run from the pocket into the tender. Afterthe coal had run out, he pushed the door or apron up, when it failed to catch or latch at the top and dropped back. He had bent over to spread the coal in the tender, and it struck him on the head, thereby causing injuries which resulted in his death. The particular chute was next to the north of a series of 20 chutes at Trenton, Mo., the bottoms of which were about 18 feet from the ground. As the top of the tender was between 11 and 12 feet from the ground, the lower part of the apron must have been 4 to 6 feet above the tender. Blocks under the chute held the door or apron when lowered in place, and weights were used to balance the aprons so that these would rise readily to a closed position. There was an inner door which raised 12 or 18 inches as the apron was let down, through which the coal ran from the pocket to the tender. A witness testified: “There are irons on the inner door that hold it in position until corresponding irons on the outer door drop them as the outer door comes down releasing the inner door. Until these irons are lifted up by the levers on the outer door, they hold the inside door closed. When the inside door does interfere in any way with the closing of the outer door, the outer door will not go near to the top; it stops lower down and usually remains where it stops. The weights hold it. If a chunk of coal should get caught, it remains; the weights on the legs hold it.” Of course, if coal or dirt prevented the inner door from going down, the outer door or apron could not rise to the top. The witness thus described the outer door: “The outer door of the second pocket is 5.3 feet high and 5.8 feet wide. There are 12 bolts in each of these cross-pieces. There are 3 of the cross-pieces that are 2 inches thick. The sharp end of the bolt is on the outside of the cross-piece. There is a nut on it. The weight of this door is, to my knowledge, it would be about 500 or 600 pounds. It is 24.2 feet from the top of the outside door when it is in a closed position to the ground. These levers extend 6.5 feet below the bottom ledge of the outside door. It is 4.45 feet from the east rail of the railroad track to the trestle work on the west side. The coal bin of a 1900 engine is 10.2 feet wide, 14.5 feet long, 11.6 feet high. The top of a 1900 engine is 11.6 feet from the top of the tie. The engines that begin with No. 1900 are of the same size.” “Before the injury to Mr. Armbruster, the two north ones were lowered to drop lower down. They were lowered about a foot and a half, in order to coal the low engines. After they were changed, they threw the coal about center way of the tender. In order to cause this outer door to reach lower to the tender, the bump block was raised. That is a block which the legs or arms of the door strike against. The trip irons or trigger were bent. Crooked irons were put on so that the lever would go higher before striking the trip iron. At the time these two north pockets were lowered, the weights were not put any lower down on the levers.”

The evidence on the part of plaintiff tended to show the weights were not so adjusted as to properly balance the apron, and, though there was testimony to the contrary, the jury might have found that the defendant was negligent in not so adjusting these as to avoid the danger of the apron falling back upon employé after being hoisted. There is no occasion to review the evidence bearing on this phase of the case. It is enough to say that the issue as to negligence in the above respect was for the jury to determine.

II. The plaintiff first filed a petition claiming damages as widow of deceased, under the laws of Missouri. The defendant in its answer thereto alleged that, at the time of the injury, it was engaged as a common carrier in interstate commerce, and that the deceased was employed by defendant therein, and for this reason the plaintiff was not entitled to recover under the laws of Missouri. Later, on August 4, 1911, the widow, as administratrix of the estate of deceased, began an action claiming damages under the federal Employers' Liability Act of Congress, approved April 22, 1908 (35 Stat. 65, c. 149 [U. S. Comp. St. Supp. 1911, p. 1322]) and the defendant answered by way of a general denial. On motion, the two causes of action were consolidated and tried together. At the close of plaintiff's evidence, a motion to require plaintiff to elect which cause of action it would prosecute was overruled, but, at the close of all the evidence, the court, on defendant's motion, required plaintiff to so elect and she chose to proceed with the action, claiming damages as widow of deceased under the laws of Missouri. The right to recover was challenged in several ways, not necessary to be enumerated, and it is now insisted that, owing to the differences between the laws of Missouri and those of this state, the plaintiff ought not to be permitted to maintain the action. The statutes of that state, in so far as necessary to a full understanding of the questions involved, may be set out:

Section 5425 of Revised Statutes of Missouri: “Whenever any person * * * shall die from any injury resulting from or occasioned by the negligence, * * * of any officer, agent, servant or employé whilst running, conducting or managing any locomotive, car or train of cars, * * * the corporation * * * in whose employ any such officer, agent, servant, * * * shall be at the time such injury is committed, * * * shall forfeit and pay as a penalty for every such person, employé or passenger so dying, the sum of not less than $2,000.00 and not exceeding $10,000, in the discretion of the jury, which may be sued for and recovered first by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased. * * * In suits instituted under this section, it shall be competent for the defendant, for his defense, to show that the defect or insufficiency named in this section was not of a negligent defect or insufficiency, and that the injury received was not the result of unskillfulness, negligence or criminal intent.”

Section 5426: “When Representative May Sue.--Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”

Section 5427: “Damages, by Whom Recovered, Measure of.--Damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in section 5425, and in every such action the jury may give such damages, not exceeding ten thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue, and also having regard to the mitigating and aggravating circumstances attending such wrongful act, neglect or default.”

[1] Appellant argues that all these statutes are penal in nature and for this reason, being contrary to the policy of this state, will not be enforced here. Were this true, the result contended for necessarily must follow. Taylor v. Telegraph Co., 95 Iowa, 740, 64 N. W. 660;Cary v. Schmeltz, 141 Mo. App. 570, 125 S. W. 532;Walsh v. Railway, 201 Mass. 527, 88 N. E. 12;Blaine v. Curtis, 59 Vt. 120, 7 Atl. 708, 59 Am. Rep. 702;Matheson v. Railway, 61 Kan. 667, 60 Pac. 747;Raisor v. Railway, 215 Ill. 47, 74 N. E. 69, 106 Am. St. Rep. 153, 2 Ann. Cas. 802. That the statute first quoted is penal in character admits of no doubt. It allows more than actual compensation for the loss sustained and has been construed by the courts of Missouri as penal. Philpott v. Railway, 85 Mo. 164;Rafferty v. Railway, 15 Mo. App. 559;Young v. Railway, 227 Mo. 307, 127 S. W. 19. But no claim is made under section 5425 of the Missouri Revised Statutes, and indeed none could be, for the injury there contemplated must have resulted or been occasioned by negligence, unskillfulness, or criminal intent whilst running, conducting, or managing a locomotive car or train of cars. Peters v. Railway, 150 Mo. App. 721, 740, 131 S. W. 917;Hegberg, Adm'r, v. Railway, 164 Mo. App. 549, 147 S. W. 192.

The action is based on section 5427, and the other two sections evidently were pleaded to show plaintiff's right to maintain the action. The sections were formerly numbers 2864, 2865, and 2866, and the Supreme Court of Missouri, in distinguishing them, said in Casey v. Transit Co., 205 Mo. 721, 103 S. W. 1146: “The right of action given under section 2864 is not that given under sections 2865 and 2866, and that given under the two last-named sections is not that given under the former. These are purely statutory rights of action, and each must rest on its own statute. They may be joined in the same petition, but, when so, they should be stated in separate counts. The right of action...