Brown v. Missouri, K. & T. Ry. Co.

• Decision Date: 08 April 1919
• Docket Number: No. 15205.,15205.
• Citation: 201 Mo. App. 316,212 S.W. 26
• Court: Missouri Court of Appeals
• Parties: BROWN v. MISSOURI, & K. T. RY. CO.

212 S.W. 26

201 Mo. App. 316

BROWN v. MISSOURI, & K. T. RY. CO.

No. 15205.

St. Louis Court of Appeals. Missouri.

April 8, 1919.

Rehearing Denied April 24, 1919.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action by Rose M. Brown, administratrix of the estate of Andrew G. Brown, deceased, against the Missouri, Kansas & Texas Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

J. W. Jamison, of St. Louis, for appellant. Leahy, Saunders & Barth, of St. Louis, for respondent.

BECKER, J.

This is an action by Rose M. Brown, administratrix of the estate of Andrew G. Brown, deceased, to recover damages from the Missouri, Kansas & Texas Railway Company for the death of the said Andrew G. Brown, an employé of the defendant company, caused by its alleged negligence.

While in charge of a locomotive engine of the defendant company, and while engaged in drawing a train in interstate commerce, one of the tank boxes on the tender of the locomotive ran hot, and said Brown, while standing on the ladder or steps leading down from the gangway that formed the fore part of the tender, inspecting said tank box, came in contact with the stone projecting from an embankment along the said right of way of said railroad and was knocked from his engine, inflicting injuries upon him which resulted in his death. From a verdict in favor of plaintiff in the sum of $2,500, defendant appeals.

The grounds of negligence in plaintiff's petition relied on for a recovery are, in substance: First, that owing to insufficiency and lack of repair and attention on the part of the defendant, the locomotive developed a condition known as a hot box in one of the journals. Second, that while plaintiff's decedent was making an examination of the hot box, he "grasped the handrail of the engine and tender and leaned out in order to enable him to obtain a view of the side of the engine, and while so leaning out he came in contact with a stone projecting from the embankment along the right of way of said defendant," throwing him from the engine and so injuring him as to result in his death. Third, that the defendant permitted its right of way, at the point where plaintiff's decedent was injured, to be left in a dangerous and unsafe condition by reason of the wall or embankment along which the defendant's tracks were laid at this point, being left in such close proximity to the rails as to endanger the life or limb of the servants of the defendant while in the discharge of their duties in the operation of the locomotive and train.

Defendant's answer admitted that Brown met with injuries resulting in his death, while in its employ as an engineer, and while operating a train, and at a time when said train was rapidly moving at about 40 or 50 miles an hour, by the deceased coming in contact with a natural barrier or bluff located parallel to defendant's railway tracks. The answer contained a plea of contributory negligence, and a further answer that the deceased, in the performance of his duties, had passed said barrier and bluffs while operating defendant's locomotive as an engineer in "the daytime and nighttime" for a period of many years next prior to the date of his injuries, and that he was familiar with the location of both defendant's tracks and the bluff or point referred to, and that with such knowledge the deceased was guilty of negligence in placing himself in a position of peril on said ladder, whereby he fully assumed the risks and dangers incident to his position. The answer also sets up the plea that the deceased violated one of the defendant's rules advising employés that there were obstructions on the defendant's right of way along its tracks that would not clear a man riding on the side of the car, by which all employés were required to take notice and protect themselves from injuries in passing such obstructions, and that the deceased was injured as a result of the violation of that rule. The reply was conventional.

The essential facts disclosed by the evidence adduced on behalf of the plaintiff may be stated as follows:

The deceased was 52 years old, and on November 4, 1914, the day on which he met with his injuries which resulted in his death, was earning from $175 to $190 per month. He was the husband of Rose M. Brown, who is the administratrix of his estate. He had been in the employ of the defendant company as an engineer for about 14 years, and for many years prior thereto had worked for the company in other capacities.

On the day in question, Brown was making his run from New Franklin to St. Louis, Mo., a distance of 183 miles, drawing one of defendant's fast passenger trains. The locomotive assigned him for that run was what is known as a ten-wheel type engine, weighing 137½ tons, has an open cab, and the tank on the tender connected to the engine was 9 feet 7 inches in width, while the gauge between defendant's tracks was 4 feet 8½ inches. The journal box of the front wheel on the left side of the tank, or fireman's side of the engine, had on several occasions prior to the day in question been reported as running hot, and the very day before, this particular tank box having been reported as running hot, was examined and repacked, but during the trip of November 4th the journal box again ran hot so that the deceased, when he stopped the train at McBain, connected a rubber hose to a valve in the tank and kept a small stream of water running into the said box. This method of treating a box which is inclined to overheat is referred to by various witnesses as the "Keeley Cure."

There is testimony that Brown kept up the "Keeley Cure" from McBain up to milepost 115, the point at which he met with his injuries. Brown examined the box at McBain, again at North Jefferson, and also at Mokane. The tracks of the defendant company east of Mokane run parallel with the Missouri river and close up to a series of bluffs. Some few minutes after the train had left Mokane, Brown walked from his seat in the cab to the gangway between the engine and tender, stepped down onto the steps leading from the gangway, holding the handrail of the tender in one hand and the handrail of the engine in the other, evidently for the purpose of inspecting the tank box, and while in that position he was struck between the hips and shoulders by a projecting rock in the bluffs and knocked off the engine, meeting with injuries from which he died the following day. This occurred about 9 miles east of Mokane, and according to the testimony the distance or clearance from the side of the tank to the projecting rock in the bluffs, at the point where Brown was struck, was 20 to 24 inches.

One Blackmer, a witness for the plaintiff, testified he was one of the defendant's engineers and had charge of the engine in question on its trip the previous day, from St. Louis to New Franklin, and that it had been necessary for him to use water on the journal in the same tank box on that trip; that he had reported the box as running hot.

James E. Hayes testified for plaintiff that he was a locomotive engineer for the Missouri Pacific Railway Company; that he had 18 years' experience as such, and that he had been given the assignment of engineer for pulling many of the special trains for his road, and that he was familiar with the rules as to obstructions and clearances in operating railroads; that the clearances on the Missouri Pacific, which paralleled the defendant's road on the other side of the Missouri river for a distance of 85 miles, also running along at the foot of bluffs the same as the defendant's road, were not less than 5 feet on its main line; that, while a hot box was not necessarily dangerous if given proper attention, it is a matter that requires constant watching, and that there was only one way to watch a tank box, and that was to get down on the side of the tank steps and look underneath; that the tank on engines of this type protruded out from the frame and the truck box about 18 to 22 inches, so that it would be necessary to get down on the steps of the tank in order to look underneath to examine the tank box; that a man making such an inspection would have to squat down, which would project his body out toward the bluffs slightly; that you could see the end of the tank box from the cab of certain engines, but it would be impossible to see the entire box; that, when the box was running warm and the "Keeley Cure" had been applied, it was necessary to watch it frequently in order to be sure that the water kept flowing; that frequently sediment or rust on the inside of the tank would stop up the valve leading from the tank to the hose and would stop the flow of water, which might result in the journal running red hot and cause serious trouble; that he had frequently himself made an inspection of a hot box in the same manner on the Missouri Pacific road, running along bluffs, even at 40 miles per hour.

W. P. Smith, one of plaintiff's witnesses, testified he was a railroad engineer and had some 22 years' experience on the Southern Pacific, Mexican Central, Ft. Worth and Rio Grande, Atchison, Topeka & Santa Ed, Baltimore & Ohio, and Texas Pacific; that he had examined the engine that had...