Brimer v. Davis

• Decision Date: 07 November 1922
• Citation: 245 S.W. 404,211 Mo.App. 47
• Parties: WILLIE A. BRIMER, Administratrix of the Estate of STEPHEN BRIMER, deceased, Respondent, v. JAMES C. DAVIS, Director General, as Agent Designated under the Transportation Act of 1920, in Charge of Litigation on Causes of Action Arising During and Out of Federal Control of the Chicago & Alton Railroad Company, Appellant
• Court: Missouri Court of Appeals

245 S.W. 404

211 Mo.App. 47

WILLIE A. BRIMER, Administratrix of the Estate of STEPHEN BRIMER, deceased, Respondent, v. JAMES C. DAVIS, Director General, as Agent Designated under the Transportation Act of 1920, in Charge of Litigation on Causes of Action Arising During and Out of Federal Control of the Chicago & Alton Railroad Company, Appellant

Court of Appeals of Missouri, St. Louis

November 7, 1922

Appeal from the Circuit Court of Pike County.--Hon. Edgar B Woolfolk, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

McGinnis & Smith and Charles M. Miller, for appellant.

(1) The trial court erred in refusing appellant's peremptory instructions for two reasons: (a) Plaintiff's alleged cause of action was predicated on the federal Employers Liability Act, and the evidence showed that deceased Brimer was not, at the time of the accident, engaged in interstate commerce. Winters v. Railroad, 242 U.S. 353; Van Buskirk v. Railroad, 228 F. 489; Chicago, Burlington & Quincy Railroad v. Harrington, 241 U.S. 177; Cronin v. Railroad, 176 P. 919; Ind. Comm. v Railroad, 123 N.E. 278; Mayers v. Railroad, 100 A. 967; Nary v. Railroad, 159 N.W. 230. (b) No actionable negligence proven against defendant. Gabal v Frisco Railroad, 251 Mo. 257-267; Cahill v. Railroad, 205 Mo. 393; Degonia v. Railroad, 224 Mo. 564; Evans v. Railroad, 178 Mo. 517; Sissell v. Railroad, 214 Mo. 515; Kelly v. Railroad, 75 Mo. 142; Fore v. Chicago & Alton Railroad, 114 Mo.App. 551-555. (2) The trial court erred in giving plaintiff Instruction 1 for the reason that it assumed that the defendant was guilty of negligence and was further erroneous in not stating to the jury what would constitute negligence. (3) The trial court erred in refusing defendant's instructions 9, 10, 13 and 14, relating to alleged negligent rate of speed and alleged failure to give warning for the reason that said instructions properly declared the law applicable to this case. (4) The trial court erred in refusing defendant's instructions 11 and 12 for the reason that they properly declared the law. (5) The trial court erred in refusing defendant's instruction 17, to the effect that deceased Brimer was not engaged in interstate commerce at the time of the accident.

Hostetter & Haley, and Frank Hollingsworth, for respondent.

ALLEN, P. J. Becker and Daues, JJ., concur.

OPINION

ALLEN, P. J.

This is an action to recover damages for the death of Stephen Brimer, alleged to have been caused by the negligence of the original defendants, Walker D. Hines, Director General, and the Chicago & Alton Railroad Company. The action is prosecuted by the administratrix of the estate of said Stephen Brimer, deceased, under the Federal Employers' Liability Act. The trial below, before the court and a jury, resulted in a verdict and judgment in favor of plaintiff and against the defendant Walker D. Hines, Director General, in the sum of $ 6250. From this judgment said defendant prosecuted an appeal to this court, and pending the appeal James C. Davis, agent designated under the Federal Transportation Act of 1920, has been substituted as defendant and appellant in lieu of said Walker D. Hines.

Stephen Brimer was in the employ of Walker D. Hines, Director General--whom we shall term the defendant--during Federal control of the Chicago & Alton Railroad Company, at Booth, a freight division point on said railroad in the State of Missouri, in the capacity of "supply man." Defendant maintained at this place yards with many tracks, and north of those tracks a distance of, perhaps, more than two hundred feet were the two tracks with which we are here concerned. These two tracks began at a turntable located at the entrance to defendant's roundhouse, and, after diverging as they left the turntable, extended almost due west, being apparently a little less than thirty feet apart. The north track was known as the outbound track, and was used for engines and trains proceeding west out of Booth. The south track was known as the inbound track, and engines came in on it, proceeding east, to enter the roundhouse. West of the roundhouse, perhaps five hundred or six hundred feet, was a coal chute, or coaling station, a tall structure upon timbers or "trestle work," situated between the outbound and the inbound tracks mentioned above. A short distance east of this coal chute, and on the south side of and near the south or inbound track, was a sand house. Between this sand house and the turntable was a cinder pit located beneath the south or inbound track; and a short distance southeast of this cinder pit was a small house or shanty referred to in the evidence as the fire knockers house or the rest house. North of the north or outbound track, and somewhere between the coal chute and the round-house, was a small tool house.

Plaintiff had been working with one Offutt, the engine hostler, engaged, together with Offutt, in preparing an engine, engine No. 842, which was shortly to leave Booth to take a train west from that point. It was Brimer's duty to furnish the engine with coal, water, oil, sand, etc., and assist the hostler in getting the engine ready. It appears that this work had been practically completed on engine No. 842, though it is said to have been the duty of Offutt and Brimer to take the engine, when completely ready, to a point on the outbound track opposite the tool house mentioned, where the road engineer usually took charge of it. While this engine, No. 842, was standing on the north or outbound track facing west, with the front end thereof perhaps a short distance east of the east end of the coal chute, Brimer left it in response, it is said, to a beckoning signal by the yard foreman, one Smith, who was standing east and somewhat south of Brimer, south of the two tracks mentioned, at a point about southeast of the cinder pit and near the fire knockers house. Brimer walked toward the foreman, proceeding, for the most part, approximately southeast or south of east, until he reached the inbound track at a point a short distance west of the cinder pit. As he was stepping upon the inbound track he was struck and killed by an engine, engine No. 429, which was proceeding east on that track, "backing in," i. e. with the engine facing west and backing east, with the tender preceding it.

The assignments of negligence in the petition are: (1) An assignment that the foreman was negligent in beckoning to plaintiff under the circumstances. (2) That defendant's agents and servants in charge of the engine which struck and killed the deceased were negligent in driving it at a high and unusual rate of speed without giving any warning of it approach; and (3) that said agents and servants in charge of said engine were negligent in driving it at a high and unusual rate of speed without having the engine under control and without having "some person on the lookout so that said engine could have been stopped whenever necessary to protect employees crossing over or going along said tracks."

At the beginning of the trial the following stipulation of counsel was introduced in evidence, viz.:

"In order to avoid the taking of depositions, it is hereby stipulated and agreed by and between the attorneys of record herein as follows:

"First. That a freight train was pulled from Booth, Missouri, to Slater, Missouri, on July 21, 1918, by engine No. 842 and that there was in some of the cars of said train on said date, between said Booth and Slater, merchandise which had been shipped in said cars from points in other States of the United States to Booth in the State of Missouri and destined for other points in Missouri, and also merchandise in some of the cars of said train shipped from points in the State of Missouri to other points within the State of Missouri.

"Second. That engine No. 842 had pulled over the tracks of the Chicago & Alton Railroad previous to being placed in the roundhouse at Booth, Missouri, on July 21, 1918, cars engaged in both interstate and intrastate commerce.

"Third. That the Chicago & Alton Railroad is and was on July 21, 1918, engaged in interstate and intrastate commerce and is a railroad doing both interstate and intrastate commerce, having lines of railroad in the State of Illinois and connecting with lines of railroad in the State of Missouri.

"Fourth. That the engine which on July 21, 1918, ran over and injured Stephen Brimer was either a switch engine which had previously been engaged in assembling cars in interstate and intrastate commerce or was a road engine which had previously been engaged in pulling cars engaged in interstate or intrastate commerce.

"Fifth. That Booth is a freight division point on the Chicago & Alton Railroad. "

Offutt, the engine hostler mentioned above, testified, in substance, that he and the deceased had just completed preparing engine No. 842 to go out on the road--though it was their duty to take the engine east to the tool house mentioned where it was taken charge of by the engineer--when the foreman beckoned or motioned to them with his hand indicating that he desired one or both of them to come to him; that about that time the witness noticed that the top of the sand dome of the engine was off, and he began to put that in place while Brimer started toward the foreman who, as said, was standing a short distance southeast of the cinder pit across the two tracks from the witness and the deceased. The witness said that he saw engine No. 429 backing in towards the cinder pit, first noticing it when it passed the coal chute; that the deceased crossed the north or outbound track and continued, proceeding nearly east but slightly south of east, toward the foreman, while engine No. 429 continued to back east on the inbound track; that seeing Brimer...