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

Decision Date19 December 1914
Docket NumberNo. 16788.,16788.
Citation172 S.W. 340
CourtMissouri Supreme Court
PartiesFISH v. CHICAGO, R. I. & P. RY. CO.

Action by Millie Fish against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff is the widow and administratrix of Norman G. Fish, and sues to recover damages under the federal Employers' Liability Act, as amended in 1910, for his death on January 15, 1909, at Princeton, Mercer county, Mo. The petition was filed the 21st of September, 1910, and alleges, in substance:

"That on the date of his death said Norman G. Fish was employed as a head brakeman of a freight train by the defendant railroad company, which was an interstate carrier and engaged at the time in interstate commerce. That "prior to the 15th of January, 1909, the defendant had negligently erected on its roadway between its passing track and main line at the south end of its yards at Princeton, Mo., an iron standpipe or water crane for the supplial of water to its engines, and negligently maintained said iron standpipe or water crane so near its said tracks and so near the sides of passing cars and of such insufficient distance from said tracks and from the sides of passing cars as to endanger the personal safety and lives of defendant's employés in the performance of their duties, upon its trains and cars, passing through said town of Princeton, and along said standpipe or water crane. Said standpipe or water crane was then and there erected and maintained within a distance of between 18 and 24 inches from the sides and side ladders of passing cars ordinarily passing on defendant's passing track, and said standpipe or water crane was of such insufficient distance from said railroad tracks and said passing cars and so near the same that it was not reasonably safe to defendant's brakemen, while on the side and side ladders of its freight car, and while in the performance of their duties on trains passing said standpipe or water crane, and said nearness of said standpipe or water crane rendered defendant's tracks, cars, and standpipe or water crane, at that point, an unsafe place to work. And at all times mentioned in this petition the defendant knew of said nearness and said insufficient distance to said standpipe or water crane, and might have known of the same by the exercise of ordinary care and diligence. On January 15, 1909, at Princeton, Mo., while the said Norman G. Fish was in the exercise of ordinary care, and was in the performance of his duties as defendant's head brakeman of said freight train, and while said Norman G. Fish was on the side of one of defendant's cars engaged in his duties as head brakeman, and while it was dark, and while said Norman G. Fish did not know of his proximity to said standpipe or water crane, said train upon which the said Norman G. Fish was serving defendant as head brakeman ran over and along defendant's said passing track, and carried the said Norman G. Fish against said standpipe or water crane, whereby the head and body of Norman G. Fish was brought into contact and collision with, and struck by, said standpipe or water crane, and the said Norman G. Fish was thereby knocked under said train and his body was thereby mutilated and mangled, and the said Norman G. Fish was thereby negligently killed and caused to die, which death of the said Norman G. Fish was caused by the aforesaid negligence and negligent acts of the defendant. That at the time of his death said Norman G. Fish was a servant of the defendant in the conduct of its interstate commerce business. That his earning capacity was $100 per month. Wherefore plaintiff prays damages for his death in the sum of $30,000."

Before answering said petition, the defendant filed a petition to remove the same to the federal court on the ground of diverse citizenship, and on the further ground that it involved the construction of an amendment (April 5, 1910) of the federal Employers' Liability Act, and executed bond for removal. The petition for removal being denied, the defendant answered, in substance: That the deceased husband of the plaintiff had been long in defendant's employ as a freight brakeman, and had full knowledge of the location of the said water crane, and negligently assumed such a position on the side of the car and placed his body from such a distance that his injuries and death were caused by his own negligence directly contributing thereto and his assumption of the risks of such a collision. That the deceased carried and was familiar with a time-table, and also with certain rules prescribed by defendant for its employés, and, among others, the following:

"All employés are hereby notified that there are coal chutes, platform, and other structures, located on the main line and on sidings, also structures and platforms belonging to private corporations and persons, located on industrial sidings and spurs, that will not clear a man riding on the side of a car, and all employés must protect themselves from injury in passing such structures."

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