Conrad v. Baltimore & O. R. Co.

• Decision Date: 22 November 1939
• Docket Number: 36010
• Parties: George W. Conard v. Baltimore & Ohio Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

133 S.W.2d 350

345 Mo. 335

George W. Conard v. Baltimore & Ohio Railroad Company, a Corporation, Appellant

No. 36010

Supreme Court of Missouri

November 22, 1939

Appeal from Circuit Court of City of St. Louis; Hon. Wm. S Connor, Judge.

Affirmed.

Kramer Campbell, Costello & Wiechert and Fordyce, White Mayne, Williams & Hartman for appellant.

(1) The only way in which the provisions of the Safety Appliance Acts (Secs. 1-23, Title 45, U.S.C. A.) with reference to power or train brakes can be violated is to run a train with less than 85 per cent of the cars of such train having their brakes used and operated by the engineer on the locomotive drawing the train, or to run a train, even though 85 per cent of the cars are so equipped, when all power brake cars associated with such 85 per cent do not have their brakes so used and operated. United States v. Erie Ry. Co., 237 U.S. 407, 35 S.Ct. 621, 59 L.Ed. 1019; United States v. C. B. & Q. Ry. Co., 237 U.S. 412, 35 S.Ct. 634, 59 L.Ed. 1923; Louisville & Jeffersonville Bridge Co. v. United States, 249 U.S. 538, 39 S.Ct. 355, 63 L.Ed. 757; United States v. Northern Pac. Ry. Co., 254 U.S. 254, 41 S.Ct. 101, 65 L.Ed. 249; New York Central Railroad Co. v. United States, 265 U.S. 47, 44 S.Ct. 436, 68 L.Ed. 892; United States v. Great Northern Ry. Co., 73 F.2d 736, certiorari denied 295 U.S. 752. (2) But there is no requirement in any section of the Safety Appliance Acts that a car may not be used without its air brake equipment in an efficient condition. Cars may be so used in switching movements. United States v. Erie Ry. Co., 237 U.S. 407, 35 S.Ct. 621, 59 L.Ed. 1019; United States v. C., B. & Q. Ry. Co., 237 U.S. 412, 35 S.Ct. 634, 59 L.Ed. 1023; Louisville & Jeffersonville Bridge Co. v. United States, 249 U.S. 538, 39 S.Ct. 355, 63 L.Ed. 757; United States v. Northern Pac. Ry. Co., 254 U.S. 254, 41 S.Ct. 101, 65 L.Ed. 249; United States v. Great Northern Ry. Co., 73 F.2d 736, certiorari denied 295 U.S. 752. (3) In cases arising under the Federal Employers' Liability Act (except where a violation of the Safety Appliance Acts is the proximate cause of the injury), the doctrine of assumption of risk is applied not only to ordinary risks which are natural incidents to the occupation, but also to extraordinary risks, including negligence in failing to provide a safe place to work or suitable appliances with which to work. Seaboard Air Line Railroad Co. v. Horton, 233 U.S. 504, 34 S.Ct. 635, 58 L.Ed. 1062; Jacobs v. So. Ry. Co., 241 U.S. 237, 36 S.Ct. 588, 60 L.Ed. 970; Boldt v. Pennsylvania Ry. Co., 245 U.S. 446, 38 S.Ct. 139, 62 L.Ed. 385; Delaware L. & W. Railroad Co. v. Koske, 279 U.S. 10, 49 S.Ct. 202, 73 L.Ed. 578; Hoch, Admx., v. St. L.-S. F. Ry. Co., 315 Mo. 1199, 287 S.W. 1047; Webber v. Terminal Railroad Assn., 335 Mo. 11, 70 S.W.2d 863. And in such cases contributory negligence of the injured employee will diminish the damages to be awarded. Seaboard Air Line Co. v. Tilghman, 237 U.S. 499, 35 S.Ct. 653, 59 L.Ed. 1069. (4) The rule of the master's liability for negligence to servants for defects discoverable by inspection does not apply to servants charged with the duty of making the inspections; and the rule of the master's liability for injury resulting from the failure to maintain in safe condition machinery, etc., does not apply to those servants charged with the duty of making repairs, who are injured by reason of such defect while in the course of making repairs. Roberts v. M., K. & T. Ry. Co., 166 Mo. 383; Hager v. Term. Railroad Assn., 207 Mo. 317; Corby v. M. & K. Tel. Co., 231 Mo. 440; Shelton, Admx., v. Kirksville L.P. & Ice Co., 258 Mo. 534; Flack, Admx., v. A., T. & S. F. Ry. Co., 285 Mo. 50, certiorari denied 256 U.S. 690; Brady v. Wabash Ry. Co., 49 S.W.2d 30, 329 Mo. 1123; Gleeson v. Excelsior Mfg. Co., 94 Mo. 201; Kansas City, M. & O. Railroad Co. v. Wood, 262 S.W. 524.

Mason & Flynn for respondent.

(1) The requirements of the Safety Appliance Act are absolute. In order to establish a civil liability in favor of an injured person it is only necessary to show that an appliance covered by the Safety Appliance Act was defective and that, as a direct result of that defect, the plaintiff was injured. Negligence of the defendant carrier and contributory negligence of the plaintiff are both immaterial. Nor is it material that the injured person was an employee charged with the duty of inspecting for the purpose of discovering the very sort of defects the existence of which caused his injury. Brady v. Term. Railroad Assn., 303 U.S. 10, 82 L.Ed. 615; Callicotte v. Chicago, R. I. & P. Ry. Co., 274 Mo. 689 (2) The act protects any person, whether an employee of the defendant or not, or whether he is engaged in an operation in which the safety appliance in question was specifically designed to furnish protection or not, if he is injured as a result of a defect in an appliance covered by the act. Brady v. Term. Railroad Assn., 303 U.S. 10, 82 L.Ed. 614; Swinson v. Chicago, etc., Ry. Co., 294 U.S. 529, 79 L.Ed. 1041; Fairport, etc., Railroad Co. v. Meredith, 292 U.S. 589, 78 L.Ed. 1446; Chicago, etc., Ry. Co. v. Goldhammer, 79 F.2d 272, certiorari denied, 56 S.Ct. 382. (3) The requirement that certain safety appliances be furnished necessarily implies a duty to maintain them in a condition of reasonable repair and efficiency. Fairport, etc., Railroad Co. v. Meredith, 292 U.S. 596, 78 L.Ed. 1450. (4) In order that a car may be in use, as part of a train or otherwise, it is not necessary that the car should be in motion or that the safety appliances with which it is equipped should be at the time actually in use for the purpose for which they were intended to be a protection. Brady v. Term. Railroad Assn., 303 U.S. 10, 82 L.Ed. 615; Chicago, etc., Ry. Co. v. Goldhammer, 79 F.2d 272; United States v. St. L.S. W. Ry. Co., 184 F. 32. (5) Seventeen thousand five hundred dollars, the amount of damages awarded plaintiff by the court after his having entered a remittitur of seven thousand five hundred dollars, is not excessive. Philibert v. Benjamin Ansehl Co., 119 S.W.2d 797; Wack v. Schoenberg Mfg. Co., 53 S.W.2d 28; Ramey v. Mo. Pac. Ry. Co., 21 S.W.2d 873; Unterbachner v. Wells, 296 S.W. 755.

OPINION

Tipton, J.

In the Circuit Court of the City of St. Louis, the respondent recovered a judgment for personal injuries in the sum of $ 17,500 against the appellant for an alleged violation of the Federal Safety Appliance Act. From that judgment, the appellant has duly appealed to this Court.

The appellant, a corporation, owns and operates a railroad in Illinois and other states, and is engaged in interstate commerce as a common carrier. On April 30, 1931, respondent was employed by the appellant as a car inspector in its railroad yards in East St. Louis, Illinois, known as the Cone yards. The respondent received the injury in question while making the "C" inspection of train No. 88 which was due to leave about 7:30 P. M. that day, bound for Cincinnati, Ohio, and points east. A "C" inspection consists in examining the cars for any defects in the air brakes system after the train is made up and the air from the engine is turned on. This inspection is accomplished by walking along the side of the train and listening to find out if any air is escaping from the air brake line. Respondent carried with him a lantern, wrench, and rubber hose air coupler. As he walked along making his inspection he heard air escaping between two cars. It was necessary for him to go between these cars to examine the air coupling. He was in the act of setting down his lantern when the coupling parted and the air pressure caused it to whip around with great violence and strike him on the side of the head, inflicting the injuries for which he sues. The coupling parted before he touched it and the evidence shows that it could not have come apart under pressure unless it was in some way defective. The injuries that the respondent received will be discussed later in this opinion.

Appellant, in its brief, says that the principal questions for determination are: "Did the petition on which the case was tried declare upon a violation of the Safety Appliance Acts? And was the evidence sufficient to make a submissible case on the proposition that a violation of the Safety Appliance Acts was the proximate cause of respondent's injury?" As the evidence closely followed the petition, a determination of the sufficiency of the evidence will answer the question of the sufficiency of the petition.

Appellant contends that "the provisions of the Safety Appliance Acts, with reference to power or train brakes, cannot be violated with a standing train. That the only way in which these provisions can be violated is by means of a moving train, or, in other words, to run a train without the specified percentage of cars, properly placed in the train, having their brakes used and operated by the engineer on the locomotive drawing the train."

Section One of the Act is as follows:

"It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose." [March 2, 1893, Section 1, Title 45 U.S.C. A.]

On March 2, 1903, the act was amended, making it unlawful to operate a train with less than 50 per cent of the cars without power brakes. This amendment also provides that the Interstate...