Brimer v. Davis,

• Decision Date: 07 November 1922
• Docket Number: No. 17449.,17449.
• Citation: 211 Mo. App. 47,245 S.W. 404
• Parties: BRIMER v. DAVIS, Director General of Railroads,
• Court: Missouri Court of Appeals

245 S.W. 404

211 Mo. App. 47

BRIMER v. DAVIS, Director General of Railroads,

No. 17449.

St. Louis Court of Appeals. Missouri.

November 7, 1922.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

Action by Willie A. Brimer, administratrix of the estate of Stephen Brimer, deceased, against 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. Judgment for plaintiff, and defendant appeals. Reversed and remended.

McGinnis & Smith, of Bowling Green, and Chas. M. Miller, of Kansas City, for appellant.

Hostetter & Haley, of Bowling Green, and Frank Hollingsworth, of Mexico, for respondent.

ALLEN, P.

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 (U. S. Comp. St. §§ 8657-8665). 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 $6,250. 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 (41 Stat. 456), has been substituted as defendant and appellant in lieu of said Walker D. Hines.

Stephen Brinier 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 200 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 30 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 500 or 600 feet was a coal chute or coaling station, a tall structure upon timbers or "trestlework" 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 send 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 knocker's house or the rest house. North of the north or southbound track, and somewhere between the coal chute and the roundhouse, 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 sou heast of the cinder pit and near the fire knocker's house. Bruner walked toward the foreman, proceeding, for the most part, approximately southeast or south of east, until he reached the inbound track at a point E. short distance west of the cinder pit. As he was stepping upon the inbound track he Ras 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 de-ceased were negligent in driving it at a high and unusual rate of speed without giving any warning of its approach; and (3) that said agents and servants in charge of said engine were negligent in driving it at a high and unusual rata of speed without giving 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, Mo., to Slater, Mo., 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, Mo., 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 mentioned 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. 420 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, towards the foreman, while engine No. 429 continued to back east on the inbound track; that, seeing Brimer approaching or about to step upon the inbound track, with engine No. 429 approaching him from the rear, the witness called to him three times in an effort to attract his attention and warn him of the danger; but that the latter apparently did not hear the warning, stepped upon the track and was struck by the tender of the engine. The witness testified that in his judgment engine No. 429 was traveling about 5 miles per hour, the engineer being on the north side of the engine, his accustomed Place, and the fireman on the south side thereof; that a man was on the rear footboard of the tender, on the south end of that footboard, when the engine passed the coal chute, but he heard no warning given by this man. He further testified that the distance which Brimer traveled in going from engine No. 842 to the point on the inbound track where he was struck by engine No. 429 was In his judgment about 50 or 60 feet; that Brimer was "in the manner of stepping over" the north rail of that track, had perhaps put one foot over the rail when he was struck; that the accident happened between 11 and 12 o'clock in the forenoon.

On direct examination of this witness the following occurred:

"Q. I will get you to state whether or not that engine [No. 429] gave any signals? A. I never heard them. Q. Well, did it whistle or ring a bell as you heard? A. No, sir."

The witness further testified that engine No. 842 and engine No. 429 were both road engines; that engine No. 842 "was a westbound engine called for to go out on the west end of the road"; and that it pulled a train out that morning a few minutes after the casualty occurred.

On cross-examination this witness said that the inbound track was a "live track"; that it was as much used as any track in the yards; that an...