Hamilton of Estate of George Fanger v. St. Louis-San Francisco Railway Company

• Decision Date: 10 October 1927
• Citation: 300 S.W. 787,318 Mo. 123
• Parties: Maud J. Hamilton, Administratrix of Estate of George Fanger, Appellant, v. St. Louis-San Francisco Railway Company
• Court: Missouri Supreme Court

300 S.W. 787

318 Mo. 123

Maud J. Hamilton, Administratrix of Estate of George Fanger, Appellant, v. St. Louis-San Francisco Railway Company

Supreme Court of Missouri

October 10, 1927

Motion for Rehearing Overruled December 12, 1927.

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Affirmed.

Charles P. Noell for appellant; Glen Mohler of counsel.

(1) This court has prescribed the test to be applied in determining whether there was substantial evidence supporting the verdict. Buesching v. Gaslight Co., 73 Mo. 231; State ex rel. v. Sturgis, 276 Mo. 571; Sexton v Sexton, 295 Mo. 143. (2) It is negligence as a matter of law for a defendant company to maintain an iron spout so attached to a water tank as to be a constant menace to the lives and limbs of brakemen on its trains, where it might readily have been equipped with sufficient weights so as to hang in a safe position. Choctaw Railroad Co. v McDade, 191 U.S. 64; Chesapeake & O. Ry. Co. v. Cowley, 166 F. 283; Texas & Pacific Railroad Co. v. Swearingen, 196 U.S. 50; George v. Railroad Co., 225 Mo. 364; McDuffy v. Railroad Co., 81 Vt. 68. (3) The question whether Fanger was struck by the spout of the tank and thus caused to fall and be killed was, under the circumstances and physical facts and conditions in evidence, a proper question to be submitted to the jury. Choctaw Railroad Co. v. McDade, 191 U.S. 64; Myers v. Pittsburg Coal Co., 233 U.S. 184; Chesapeake & Ohio Railroad Co. v. Cowley, 166 F. 283; Laughlin v. Ry. Co., 275 Mo. 459; Settle v. Ry. Co., 127 Mo. 341; Kelly v. Ry. Co., 141 Mo.App. 490; Hardwick v. Wabash Ry. Co., 181 Mo.App. 156; Yongue v. Railroad Co., 133 Mo.App. 141; Grant v. Railroad, 172 Mo.App. 334; Lock v. Ry. Co., 219 S.W. 919; Briscoe v. Railroad Co., 200 Mo.App. 699. (4) The presumption is to be indulged, in the absence of evidence to the contrary, that deceased was at the time in the exercise of ordinary care on his part. Pittsburg Ry. Co. v. Scherer, 205 F. 356; Buesching v. Gaslight Co., 73 Mo. 229.

E. T. Miller and A. P. Stewart for respondent.

There was a total failure of proof of the negligence charged and relied on for recovery. The court should have sustained the demurrers to the evidence, and it committed no error in sustaining the motion for new trial on these grounds. That the waterspout was defective in the manner alleged, or that Fanger was struck by it, is without any substantial support in the evidence, but on the contrary rests wholly on speculation and conjecture. Chicago Ry. Co. v. Coogan, 271 U.S. 478; St. Louis Ry. Co. v. Mills, 271 U.S. 347; Northern Railway v. Page, 47 S.Ct. Rep., decided April 11, 1927; Warner v. Railway, 178 Mo. 125; State ex rel. v. Bland, 313 Mo. 246.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

This is a suit for damages under the Act of Congress known as the Federal Employers' Liability Act, filed in the Circuit Court of the City of St. Louis by the (plaintiff) appellant, as administratrix of the estate of George Fanger and for the benefit of Fanger's widow and six minor children, based on the alleged negligence of (defendant) respondent as the cause of Fanger's death while employed by it as a railroad brakeman and while engaged in interstate commerce. The trial resulted in a verdict for the plaintiff in the sum of $ 10,000. Defendant's motion for a new trial was sustained on the specified grounds that the demurrers to the evidence offered at the close of the plaintiff's case in chief and at the close of all of the evidence should have been sustained. Plaintiff's appeal from the order of the trial court sustaining the motion for a new trial brings the case here for review.

In general, the plaintiff's theory of recovery is that Fanger was struck by the waterspout of defendant's water tank near Moselle, Missouri, while engaged with his duties as head brakeman on one of defendant's freight trains and while on the running board of the engine and thereby knocked off of the engine and killed. Though other items of negligence were pleaded concerning the operation and maintenance of the waterspout in question, the plaintiff submitted her case only on the allegation "that the waterspout was defective in that it did not have sufficiently heavy weights attached thereto to keep it in an upright position when not in use by the trainmen in taking water so that it would not stay in position but would lower by its own weight and gravity across the tracks and thereby be not reasonably safe for the employees on defendant's trains." [Appellant's brief, p. 2.]

The defendant's answer to the trial petition was a general denial.

At the beginning of the trial the parties stipulated and agreed that the train in question was carrying interstate shipments of freight, and that at the time Fanger was killed he and the defendant were engaged in the business of interstate commerce.

It appears from the evidence adduced by plaintiff that at the time of his death Fanger was forty-two years of age and, excepting a temporary absence of two months, had been employed by defendant as a brakeman for a period of five years. He left surviving him his widow and six minor children, all dependent upon him for support.

Defendant's line of railroad with which we are concerned in this case extended in a general southwesterly direction from St. Louis Missouri, through Pacific, Moselle, Stanton, Newburg and to points beyond, Newburg being a division point for freight trains. On the fatal trip Fanger left St. Louis on July 21, 1923, about eleven P. M. as head brakeman on Extra 43 westbound with engine No. 43 and forty-odd cars in the train. His duties as head brakeman required Fanger to attend to the coupling and uncoupling of the engine, to throw switches and to inspect the front part of the train at stops. In attending to these duties it was customary for the head brakeman to ride on the engine between stops. A seat was provided for the head brakeman on this engine (No. 43), on the left side of the cab in front of the fireman's seat. On this seat the head brakeman interfered to some extent with the work of the fireman, and in warm weather this seat was uncomfortable on account of being close to the boiler and fire-box. For these reasons the head brakeman sometimes rode on the pilot of the engine in the summer season. This train made its first stop at Pacific, thirty-four miles west of St. Louis, where the engine was uncoupled to take on a new supply of coal and water. At Pacific, Fanger was seen by other members of the train crew attending to his duties and apparently in robust health and normal in every way. Upon leaving Pacific this train was not scheduled to stop again until it reached Stanton, twenty-eight miles west of Pacific and sixteen miles west of Moselle, Stanton being designated in the dispatcher's orders as a meeting point with the third section of train No. 34 eastbound. About a mile east of its station at Moselle and on the south side of its tracks defendant maintained a water tank, with a waterspout attached, which was used, when necessary, in supplying its engines with water. Several hundred feet west of the water tank defendant's tracks crossed the Meramec River on a bridge, consisting of two spans of overhead structure in the middle and approaches at each end thereof, known as deck plate girders. There was a long curve in defendant's tracks as they approached this water tank from the east, but the tracks were practically straight from the water tank to the station at Moselle, and there was a heavy upgrade extending about six miles to the westward from Moselle, known as Iron Hill. Not being scheduled to stop at Moselle, Extra 43 was taking a run for Iron Hill as it passed the water tank and was running at the rate of about thirty miles per hour. After the train pulled out of Pacific, Fanger was not seen by any member of the crew until they were on the curve east of the water tank, when the fireman saw the figure of a man with a lighted lantern coming from the pilot of the engine onto the running board and toward the cab on the left or fireman's side of the engine. It is a compelling inference that the man on the running board was Fanger, and both sides so agree. About the time the fireman saw the man with the lantern on the running board and before the engine reached the water tank the fireman left his seat in the cab and stepped down to the deck of the cab, as he states was his custom when his engine was approaching water tanks and overhead bridges. In this connection he further states that he was getting his fire ready for the long pull over Iron Hill. After the train entered the bridge there was a crash at the cab windows on the fireman's side and the glass of the windows was thrown into the deck of the cab and across to the engineer's seat on the opposite side of the cab. The storm-window or windshield on the fireman's side was torn off in this crash. It was about two feet long and six inches wide, and was attached to the outside of the cab in a perpendicular position. The fireman told the engineer to stop; that he thought the brakeman had been struck and knocked off of the running board. This happened about two A. M. July 22, 1923. The train was stopped on the west side of the bridge and Fanger's dead body was found in a sitting posture, facing south, on the truss rods or stringers near the west end of the overhead structure and on the south side and below the level of the tracks, 631 feet west of the water tank. "In the back of his head was a big hole." The next day marks and scratches were found on one of the uprights or ladder posts of the bridge on the south side and near the east end. A few feet beyond or west of these marks and scratches blood spots were found on...