Flack v. Atchison, Topeka & Santa Fe Railway Co.

• Decision Date: 16 July 1920
• Citation: 224 S.W. 415,285 Mo. 28
• Parties: MARY FLACK, Administratrix of Estate of S. C. FLACK, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

224 S.W. 415

285 Mo. 28

MARY FLACK, Administratrix of Estate of S. C. FLACK, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 16, 1920

Appeal from Jackson Circuit Court. -- Hon. Daniel E. Bird, Judge.

Reversed.

Cyrus Crane, Geo. J. Mersereau, John H. Lathrop, for appellant Thomas R. Morrow of counsel.

(1) The case falls within the purview of the Federal Employers' Act of April 22, 1908 (35 U. S. Stat., p. 65, c. 149), as amended by the Act of April 5, 1910 (36 U. S. Stat., p. 291 c. 143). Seaboard Air Line Ry. v. Horton, 233 U.S 501; Railroad v. Slavin, 236 U.S. 454; Southern Ry. Co. v. Gray, 241 U.S. 338. (2) On the entire record plaintiff was not entitled to recover. (a) Because the accident and death of S. C. Flack, deceased, was due solely to his negligence and his negligence was the sole proximate cause of said accident. Great Northern Ry. Co. v. Wiles, 240 U.S. 444; Scoffin v. Furniture Co., 184 Mo.App. 627; Finnegan v. Ry. Co., 244 Mo. 608. (b) Because S. C. Flack, deceased, assumed the risk flowing from the manner and way in which he attempted to do the work. Seaboard Air Line v. Horton, 233 U.S. 492; Boldt v. Pa. Railroad Co., 245 U.S. 441; Gila Valley Ry. Co. v. Hall, 232 U.S. 94; Jacobs v. Southern Ry. Co., 241 U.S. 229; Gillis v. Railroad Co., 249 U.S. 515; Hatton v. Railroad Co., 261 F. 667; C. R. I. & P. Ry. Co. v. Ward, (U. S. Sup. Ct., March 1, 1920); 1 Bailey on Personal Injuries, Re Master & Servant, sec. 504 and sec. 505; 14 Am. & Eng. Encyc. Law (1 Ed.), 845; 20 Am. & Eng. Encyc. Law (2 Ed.), 118; Elliott on Railroads, 1289, p. 708; Hager v. Railroad, 207 Mo. 317; Bradley v. Ry. Co., 138 Mo. 302; Jackson v. Ry. Co., 104 Mo. 457; Purcell v. Tennent Shoe Co., 187 Mo. 276; Armour v. Hahn, 111 U.S. 313; Roberts v. Tel. Co., 166 Mo. 370; Henson v. Armour Pkg. Co., 113 Mo.App. 618; American Bridge Co. v. Seeds, 144 F. 605; Cole v. Sav. & Loan Soc., 59 C. C. A. 593, 124 F. 113, 63 L. R. A. 416. (3) The evidence of custom and practice was erroneously admitted, and the court further erred in refusing to withdraw such evidence from the consideration of the jury. Shields v. Ry. Co., 87 Mo.App. 643; Ry. Co. v. Lindeman, 143 F. 946.

Atwood, Wickersham, Hill & Popham for respondent.

(1) Appellant's abbreviated abstract of the record is fatally defective because it fails to show that motion for new trial was filed in term time and within four days of the rendition of verdict. The only reference to a motion for new trial is on page nine of appellant's abstract of record and this wholly fails to meet the requirements of the law and rules of the court. Also there is no showing that bill of exceptions was signed by the trial judge and properly filed. McKnight v. Hagemeier, 209 S.W. 904; Frick v. Natl. Ins. Co., 213 S.W. 854; State ex inf. v. Morgan, 268 Mo. 270. (2) It must be conceded that the washout plug was negligently and carelessly inserted in the boiler by the Italian and Russian boiler workers. The negligence was the negligence of defendant. In Missouri it is well settled that assumption of risk is no defense where the defendant is negligent. This is so even in cases involving the application of the Federal Employers' Liability Act. Fish v. Railroad, 263 Mo. 106; Holloway v. Railroad, 276 Mo. 490. (a) Under the holdings of the Federal court, even if they vary slightly from our courts on the question of assumption of risk, the question, if any, of assumption of risk was properly left to the jury and the jury was correctly instructed on this issue by the court on the request of both plaintiff and defendant. Erie Railroad Co. v. Purucker, 244 U.S. 322, 61 L.Ed. 1166; Union Pac. v. Hadley, 246 U.S. 330, 62 L.Ed. 751; Ry. Co. v. Brown, 229 U.S. 317, 57 L.Ed. 1204; Ry. Co. v. Proffitt, 241 U.S. 62; Pac. Railroad Co. v. Cole, 214 F. 950; Ry. Co. v. Earnest, 229 U.S. 122, 57 L.Ed. 1096; Seaboard Air Line v. Horton, 233 U.S. 492; Schlemmer v. Railroad, 205 U.S. 11, 43 L.Ed. 686; Ill. Cent. Railroad v. Skaggs, 240 U.S. 66, 60 L.Ed. 528; Ry. Co. v. De Atley, 241 U.S. 315; Anzolotti v. McAdow, 262 F. 569; Patnum v. Railroad, 259 Mo. 120. (b) Failure of an employee to follow rules raises only a question of contributory negligence. Ill. Cent. Railroad v. Stewart, 223 F. 32; M. K. & T. Railroad v. Hawley, 123 S.W. 726; Thornboro v. Railroad, 91 Kan. 684, 139 P. 410. (3) It was a question for the jury whether the method used by Flack was safe or unsafe. And witnesses were competent to testify about the custom of doing the work. Diettrich v. Am. Mfg. Co., 190 S.W. 1009; Boehn v. Elec. Co., 170 Mo.App. 671; Rhea v. Railroad, 171 Mo.App. 171; Ry. Co. v. Brown, 229 U.S. 317, 57 L.Ed. 1204; Wolf v. Scullin Steel Co., 217 S.W. 573; Hutchinson v. Safety Gate Co., 247 Mo. 116; Fleming v. Mining Co., 186 S.W. 1117. (4) Appellant's alleged error on the part of court in regard to improper arguments is without merit. The objectionable remarks were withdrawn by counsel in the presence of the jury. It was a matter rightfully within the discretion of the trial judge to control and such discretion was not abused. Norris v. Ry. Co., 239 Mo. 721; Dutcher v. Railroad, 241 Mo. 177.

OPINION

WILLIAMSON, J.

This is a suit in damages on the part of Mary Flack, administratrix of the estate of S. C. Flack, deceased, against the Atchison, Topeka & Santa Fe Railway Company. The suit is brought under the provisions of the Federal Employers Liability Act. After formal allegations, the plaintiff alleges "that about 5.45 a. m., September 1, 1915, decedent's attention was called by one of defendant's employees to the fact that steam was leaking from around a wash-out plug on the boiler of an engine which was being put in readiness for use; that when an attempt was made to tighten said washout plug, the same blew out and decedent was covered by steam and hot water issuing from said boiler, burning and scalding decedent to such an extent that as a result thereof he died within a few hours thereafter . . . Plaintiff alleges that the defendant, its agents, servants and employees, were careless and negligent in the following particulars, to-wit: That the defendant's agents, servants and employees, other than decedent, negligently and carelessly inserted the wash-out plug in such a manner as to cause the said steam and hot water to leak out around the same and blow out as aforesaid, and negligently and carelessly failed and omitted to inspect said wash-out plug when same was put in place, and to see that the same fitted properly and was tight and would not leak; and that, as a direct result of said negligence and careless acts and omissions on the part of defendants, its servants and agents and employees, said water plug blew out and decedent received his mortal injuries."

Further allegations are to the effect that the locomotive in question was designed for use in interstate commerce, and that the plaintiff was the wife of the deceased; that he left five children, all of tender years, and that decedent at the time of his death was 38 years of age and earning $ 130 per month.

The answer contained a general denial, a plea that the death of the decedent was caused by his own negligence, and the following paragraph:

"Further answering said first count of said petition, defendant states that at the time and place when deceased, S. C. Flack, was employed on or about September 1, 1915, there was in force and effect a rule of the defendant company governing and controlling the actions of said S. C. Flack, deceased, as follows:

"'17. In case wash-out plugs are found to be loose after pressure is on the boiler, steam pressure must be reduced until there is no danger of plug blowing out while attempting to tighten it.'

"That S. C. Flack had full notice and knowledge of said rule, but in violation of same at the time and place mentioned in plaintiff's petition negligently failed to reduce the steam pressure upon the boiler of the engine in question and by reason thereof said plug blew out, causing the death of deceased, so that by reason of said negligence in the violation of said rule, plaintiff is not entitled to recover."

The answer further contained, in paragraph six, allegations concerning other instructions alleged to have been given in accordance with the rule above pleaded, and in paragraph seven a plea of assumption of risk. The reply was a general denial of the allegations of the answer, coupled with a further plea to the effect that Rule 17 above mentioned had been waived by defendant, and that the customary and usual method of the defendant in reference to the matters referred to in the rule was to disregard rather than to enforce the rule. At the close of the evidence, the plaintiff elected to stand on the count from which we have quoted the salient portions.

The evidence for the plaintiff in substance showed the appointment and qualification of the plaintiff as administratrix; the death of the decedent; that he had been for about eight years immediately prior to his death in the employ of defendant, at Argentine, Kansas; that the number of the children was as stated in the petition; that the deceased was thirty-seven years of age, and was earning $ 125 per month.

E. W Martin, for the plaintiff, testified that the deceased was a boiler-maker and was in charge of a gang of men whose duty it was to wash out the engine boilers, and to make such repairs as could be made in the yards, without taking the engine to the shops, to overhaul the engines and prepare them for service on the road, and steam them up and get them ready to go out; that witness was a boiler-maker and a member of the crew of which Flack was foreman; that on the morning of September 1, 1915, between four and five o'clock, Engi...