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

• Decision Date: 30 July 1926
• Docket Number: No. 25193.,25193.
• Citation: 286 S.W. 45
• Parties: BROWN v. CHICAGO, R. I. & P. RY. CO.
• Court: Missouri Supreme Court

286 S.W. 45

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

No. 25193.

Supreme Court of Missouri. Division No. 1.

July 30, 1926.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Action by Hazel Brown, administratrix of the estate of Harold Brown, deceased, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

Luther Burns, of Topeka, Kan., and Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City, for appellant.

L. B. Gillihan, of Gallatin, and Platt Hubbell and Geo. H. Hubbell, both of Trenton, for respondent.

SEDDON, C.

Respondent, who is the widow of Harold Brown, sues as administratrix of her deceased husband's estate, for the benefit of herself and deceased's infant daughter, to "recover damages for his alleged wrongful death under the federal Employers' Liability Act of April 22, 1908, as amended on April 5, 1910 (U. S. Compiled Statutes, §§ 8657-8665), and also under the federal Locomotive Boiler Act of February 17, 1911, as amended on March 4, 1915 (U. S. Compiled Statutes, §§ 8630-8639d). This is a companion case to Kidd v. Chicago, Rock Island & Pacific Railway Co., 310 Mo. —, 274 S. W. 1079; the deceased, Harold Brown, having met instant death at the same time and in the same casualty in which Clyde Kidd was also instantly killed. The case at bar was tried upon substantially the same pleadings and the same evidence as the Kidd Case, wherein we stated at considerable length and with particularity the substantive facts bearing upon the deaths of the two above-named employees of appellant. Consequently, it is unnecessary for us to restate those facts in detail in the instant case, as we incorporate herein, by reference to the Kidd Case, the facts so fully stated in our opinion in that ease.

Harold Brown was a student fireman upon appellant's freight engine 3022 on the morning of October 24, 1922. The engine crew, consisting of Clyde Kidd, engineer, V. G. Breitenbucher, fireman, and Harold Brown, student fireman, left Eldon, Iowa, on the evening of October 23, and arrived at the north corporate limit of the city of Trenton, Mo., about 6 o'clock on the morning of October 24, 1922. The crew had a train order to tie up the train on the east track between Tindall and Trenton if the 16 consecutive hours of service prescribed by the federal statute (U. S. Compiled Statutes, § 8678) expired before reaching the Trenton terminal yards. Pursuant to the train order, the crew of engine 3022 pulled onto the east track within the corporate limits of Trenton about 6 o'clock on the morning of October 24, 1922, and stopped some 100 or 150 feet behind another freight train drawn by engine 3002, which had been stalled with the pilot of engine 3002 standing about 200 to 215 feet southwardly from Rainbow bridge, an over-head street crossing, located approximately 2,480 feet south of the mile station post and 2,800 feet north of appellant's depot in Trenton. Engine 3002 had been stalled, because of badly leaking main and drifting throttles and shaker trouble, and had been left standing with its pilot some 200 to 215 feet southwardly from Rainbow bridge for a period of about an hour and a half before the casualty, with the cylinder cocks open, emitting a volume of steam on the right, or westerly side, of the engine, which steam was blown or drifted across the westerly track to the west bank of a deep cut, approximately 2,-280 feet long, through which appellant's two parallel railroad tracks pass before reaching the terminal at Trenton. The escaping steam tended to obscure a view of the westerly track immediately opposite engine 3002, and the hiss or noise of the escaping steam, and the sound of the blower in operation on engine 3002, tended to drown the sound of an approaching south-bound train on the westerly track. The crew of engine 3022, having tied up the train pursuant to order upon the expiration of the 16 consecutive hours of service about 6:15 o'clock on the morning in question, were walking southwardly to the yard office and washroom to register, wash, and change their clothing, and, when about opposite the cab or gangway of engine 3002, they walked between the rails of the westerly track, in order to pass around the escaping steam from engine 3002, and, while enveloped by, or emerging from, the volume of steam, Engineer Kidd and Student Fireman Harold Brown were struck, at 6:35 a. m., by the pilot of the locomotive of appellant's south-bound passenger train 57, at a point on the easterly rail of the westerly track about opposite the pilot of engine 3002. "The decedents, Brown and Kidd, were thrown a distance of 50 or 60 feet and instantly killed.

Appellant's passenger train 57 was 2 hours and 45 minutes late, and, when rounding a three-degree curve in the track under or near Rainbow bridge, was traveling at a speed of approximately 30 to 40 miles an hour, in violation of a rule of appellant railway company, in evidence, limiting the speed of all trains within the corporate limits of Trenton to 10 miles per hour, and also in violation of an ordinance of the city of Trenton, in evidence, limiting the speed of trains within the corporate limits of the city to 12 miles per hour. A rule of appellant, also in evidence, required engineers to sound two long and two short blasts of the whistle when approaching public crossings at grade and obscure places. Appellant's engineers Ellis and Kull testified that the curve in the westerly track under Rainbow bridge was an obscure place within the meaning of appellant's rule. Mable street crossing, a public crossing at grade, intersects appellant's double tracks and right of way approximately 1,000 feet southeasterly from Rainbow bridge. Evidence was adduced that the usual or customary whistling Point by south-bound trains for Mable street crossing and the curve under Rainbow bridge is about the beginning of the curve, 300 to 480 feet north of Rainbow bridge. There was a conflict of evidence whether the whistle of train 57 was sounded for the obscure place or curve under Rainbow bridge; appellant's witnesses testifying that the whistle was sounded at or about the customary whistling point immediately north of Rainbow bridge, while respondent's witnesses testified that no whistle was sounded after passing the station post, a mile north of appellant's depot, and 2,480 feet north of Rainbow bridge, until the emergency or warning whistle was sounded immediately before deceased Brown and Engineer Kidd were struck by train 57. There was evidence of user of the railroad tracks and right of way by appellant's employees, and at least one witness testified that appellant's tracks had, for a period of 2 years before the casualty, "been used by a great many people (not in the employ of appellant); by numbers of people; I don't know where they live, but it is used by a great number of people." It is not disputed, and the proof conclusively shows, that all the trains referred to, and their respective train crews, were engaged, at the time of the casualty, in interstate commerce.

Deceased, Harold Brown, was 26 years of age (lacking one day) when killed, and had a life expectancy, according to the mortality table in evidence, of 38.11 years. His health was good and he was shown to be industrious. He had previously worked as a railroad switchman, a street railway supervisor, and an automobile salesman, and his average earnings in those several occupations had varied from $150 to $200 per month. He was survived by his widow, who was 5 months his junior in age, and by an infant daughter, who was born about 13 months before her father's death. The jury returned a unanimous verdict for plaintiff, and assessed the damages at $20,000, and, from the resultant judgment, defendant appeals.

I. Appellant urges that the deceased, Harold Brown, was a mere licensee, and not its employee within the purview of the federal Employers' Liability Act, and therefore that the trial court should have directed a verdict for appellant upon that ground. The evidence shows that deceased was riding upon the morning of the casualty as a student fireman, receiving no pecuniary pay for his services. Three days before his death, he received from one of appellant's officers the following order or permit

                        "Trenton, Missouri, October 21, 1922
                

"To all Engineers, Missouri Division:

"This is your authority to allow bearer, Harold W. Brown, to ride engines on the Missouri Division for purpose of qualifying as fireman. Engineers please sign on back, stating his performance, date, engine number, train number, and to and from stations.

                                          "W. T. Fitzgerald."
                

The evidence further shows that the student fireman, on such trips, is subject to the orders and under the jurisdiction of the engineer and the fireman with whom he goes out, and that, on the interstate trip in question, deceased helped to fire the engine, ran the stoker, shoveled coal, and helped shake the grates and clean the cinders out of the pan, all under the orders of Engineer Kidd and Fireman Breitenbuche His clothing was in the clothes box of Engineer Kidd, and, accompanied by the engineer and regular fireman, he was on his way to the yard office and washroom of appellant to wash and to change his clothing, according to the usual custom of train crews. The conductor of the freight train upon which deceased had been riding testified that, upon being caught by the 16-hour law when close to a terminal, it was customary for the train crew to walk in and register as a part of their work and duties, and that he received pay for walking in from the train to the yard office on the morning in question.

In Baltimore & Ohio Southwestern Railroad Company v. Burtch, 263 U. S. 540, 44 S. Ct. 165, 68 L. Ed. 433, one Burtch suffered injuries, as a result of the railroad company's negligence, in assisting to unload heavy freight in...