Brown v. Missouri, Kansas & Texas Railway Company
| Decision Date | 08 April 1919 |
| Parties | ROSE M. BROWN, Administratrix of the Estate of ANDREW G. BROWN, Deceased, Respondent v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Leo. S. Rassieur, Judge.
Judgment affirmed.
J. W Jamison for appellant.
(1) Plaintiff failed to prove any of the several specifications of negligence. (2) There was no evidence that defendant, in constructing the railroad track close by the bluff, was guilty of negligent construction. The question of proper construction at that point, the physical conditions being considered, was an engineering question. Tuttle v Milwaukee R. Co., 122 U.S. 189; Potomac F. & P. R Co. v. Chichester (Supreme Court of Appeals of Va.), 68 S.E. 404; Reese v. Phila. & Reading R. Co., 239 U.S 463. Plaintiff sued on the theory of liability under the Federal Employers' Liability Act. "It was not the duty of defendant to see that this roundhouse was made equal to the newest and safest of its engine houses, but its duty was discharged when it furnished such a place as was reasonably safe and suitable for the purposes had in view. And as it was not intended or supposed that engineers or hostlers would get upon their engine as they were about to pass through this doorway, no duty requiring them to do so, there would seem to be no evidence that the roundhouse was unsuitable for its purpose. Hogan v. N.Y. Central & H. R. R. Co., 223 F. 895; Reese v. Phila. & Reading R. Co., 225 F. 518; (Supreme Court of Mo en banc, No. 17, 1917), Morris v. Pryor, 198 S.W. 817. The construction of the house and yards were in accordance with plans of the engineers of the company, and in accordance with a general plan of building freight houses and tracks. A conductor was caught between the door posts of the house and a refrigerator car. Held, that the company was not negligent under the Federal Employers' Liability Act for maintaining a defective place to work where the conductor was familiar with the surroundings and the manner of performance of service. Miller v. Mich. Cen. R. Co., 152 N.W. 235; Randall v. Baltimore & Ohio R. Co., 109 U.S. 479; Southern Ry. Co. v. Carr, 82 C. C. A. 240; New York, N. H. & H. R. Co. v. Dailey, 102 C. C. A. 660; Missouri & N. A. R. Co. v. Murphy, 153 S.W. 587; Davies v. Chicago, M. & St. P. R. Co., 236 F. 728; Sage v. Wyandotte Terminal R. Co., 159 N.W. 139. (3) The proximate cause of Brown's injury was the extraordinary and unusual position in which he placed himself down on the side of the engine, near the ground, as it approached and was passing around the curve of the bluff. He assumed the risk of that situation. (Court of Ap. of Ky., Oct. 31, 1916.) Judd's Adm'x v. Southern Ry. Co., 188 S.W. 881; (Supreme Court of Ind., Mar. 20, 1908.) Chicago & E. R. Co. v. Dinius, 84 N.E. 9; (Circuit Court of Ap., 7th Circuit, Oct. 3, 1916) Davies v. C., M. & St. P. Ry. Co., 236 F. 728; Central Vermont Ry. Co. v. Bethune, 124 C. C. A. 528 (Circuit Ct. of Ap., First Circuit, June 20, 1913); Southern Ry. Co. v. Car, 82 C. C. A. 240 (Circuit Court of Ap., 4th Circuit); Boyd v. Harris, 35 A. 222; (Supreme Court of Mo., July 2, 1914), Boesel v. Wells Fargo Express Co., 169 S.W. 110. (4) Brown came to his death solely as the result of his own negligence. As engineer he was authorized to select the time, place and conditions under which he would make inspections. He could stop his train for that purpose. Pankey v. Railway Co., 180 Mo.App. 185; Smelser v. M., K. & T. Ry. Co., 272 Mo. 25; Morris v. Pryor, 198 S.W. 817. (5) The court committed error in permitting locomotive engineer Hayes of the Missouri Pacific Railway Company to give his impression of the clearances where that company's line of railroad paralleled the hills and bluffs on the south side of the Missouri River. There was no evidence that the Missouri Pacific clearances were standard. The question of proper construction at the particular place where Brown was injured was an engineering question; the construction there was rendered necessary by physical conditions; it was a proper construction. Defendant was not required to try the issue respecting clearances on the Missouri Pacific railroad tracks. (6) Statement by plaintiff's counsel in his argument to the jury to the effect that plaintiff could not afford to call employees of defendant to testify as witnesses, "because they would have lost their jobs if they had," was unwarranted and highly prejudicial. When the court stated there was no such testimony in the record, the offense was repeated and emphasized by the following additional remark by plaintiff's "There is no such testimony, but the fact remains, and it is legitimate argument, and the conduct of Mr. Snell on the stand makes it proper for me to make that statement." Cameron v. Cameron, 162 Mo.App. 110; Neff v. Cameron, 213 Mo. 371; Epstein v. Railway, 197 Mo. 738; Haynes v. Trenton, 108 Mo. 133; Evans v. Trenton, 112 Mo. 402; Beck v. Railway, 129 Mo.App. 24; Truel v. Railway, 143 Mo.App. 380. (7) The court committed error in refusing to give defendant's instruction "J" requesting the court to withdraw from the jury's consideration the question of defendant's alleged negligence respecting the alleged insufficiency of the engine, and lack of repairs and attention thereto by defendant. There was no evidence to support said allegation. (8) The court committed error in refusing defendant's instruction "M." The purpose of this instruction was to advise the jury that if there were sufficient clearances, providing Brown had remained in his engine cab and that he volunteered to go outside and hang on to the side of his engine, whereby he was injured, there could be no recovery. (9) The court committed error in refusing to give defendant's instruction "O" the purpose and effect of which was to instruct the jury that if defendant had no reasonable ground to expect Brown to go out of his engine and hang on the side of it while the same was passing the bluff, there could be no recovery.
Leahy, Saunders & Barth for respondent.
(1) Under the Federal Employers' Liability Act, providing that the carrier shall be liable for the death of the employee "resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier or by reason of any defect or insufficiency due to its negligence in its cars, engins, appliances, machinery track, roadbeds, works, boats, wharves or other equipment" (Sec. I, 35 Stat. L. 65), the defendant in this case was liable both because it furnished deceased with a defective engine, and because it did not maintain a proper bluff clearance for its roadbed. Act. of Apl. 22, 1908, Ch. 149, 35 Stat. L. 65, Secs. 1, 3, 4, 6; Mills v. Roberts, 206 S.W. 751; Hinton v. Railroad Co., 206 S.W. 396; Boldt v. Railroad Co., 245 U.S. 441; Crecelius v. Railway Co., 205 S.W. 181; Laughlin v. Kansas City Southern Ry. Co., 205 S.W. 3; Cincinnati, N. O. & T. P. R. Co. v. McGuffey, 252 F. 25; Southern Railway Co. v. McGuin, 240 F. 649; Cincinnati, N. O. & T. P. R. R. Co. v. Hall, 243 F. 72; Illinois Central Ry. Co. v. Norris, 245 F. 926; Erie Railroad Co. v. Linnekogel, 248 F. 389. (2) Since Brown was killed in the line of his duty while inspecting his engine for a hot box in the ordinary and customary manner, he was not guilty of contributory negligence and he did not assume the risk resulting from the defendant's negligence in failing to comply with the requirements of the Federal Liability Act and in failing to furnish him with an ordinarily safe place in which to work. Authorities supra under Point 1. (3) If Brown was guilty of contributory negligence, that still would be no defense under the act, and the only effect of such negligence would be to diminish the amount of the damages, as provided by section 3 of the act. Louisville, etc., R. R. v. Fleming, 194 Ala. 51, 69 So. 125; Thomas v. Atchison Ry. Co., 101 Kan. 528, 168 P. 322; Cross v. C. B. & W. Railroad Co., 191 Mo.App. 202; Kippenbrock v. Wabash R. R. Co., 270 Mo. 479; Yoakum v. Lusk et al., 193 S.W. 635; Winslow v. M., K. & T. Railroad Co., 192 S.W. 120; Christy v. Wabash R. R. Co., 195 Mo.App. 732. (4) The question of contributory negligence is one for the jury to determine. Smith v. Atlantic Coast Line Railroad, 210 F. 761; Sandidge v. Atchison Central Railroad Co. (C. C. A., 9th Cir., 1912). (5) The extent to which contributory negligence will reduce recovery is also one for the jury. Louisville, etc., Railroad v. Fleming, 194 Ala. 51, 69 So. 125; Thomas v. Atchison Railway Co., 101 Kan. 528, 168 P. 322. (6) Contributory negligence under the act is a matter of defense, and defendant has the burden of proving it. Carpenter v. Kansas City, etc., Railroad Co., 189 Mo.App. 164; Central Vermont Railroad Co. v. White, 238 U.S. 507, 59 U.S. (L. Ed.) 1433, Ann. Cas. 1916B, 252; Holmberg v. Lake Shore R. R. Co., 188 Mich. 605, 155 N.Y. 504. (7) Assumption of risk under the act is an affirmative defense and the burden of proving it is upon the defendant. Seaboard Air Line Railroad Co. v. Horton, 233 U.S. 492, 58 U.S. (L. Ed.) 1062, Ann. Cas. 1915B, 475 L. R. A. 1915, C. I; Kenyon v. I. C. Railroad Co., 173 Ia. 484, 155 N.W. 810; Phillips v. Union P. Railroad Co., 100 Neb. 157, 158 N.W. 966; Ala. Great So. Railroad v. Skotsky, 196 Ala. 25, 71 So. 335; Kanawha, etc., Railroad Co. v. Kerse, 239 U.S. 576, 60 U.S. (L. Ed.), 448. (8) Under section 4 of the act, an employee does not assume risk of which he has no knowledge nor risks arising from unknown defects in engines, machinery or appliances and in no case does the employee assume the risk of the employer's negligence. Winslow v. Mo., etc., Railroad Co., 192 S.W. 121; ...
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