Hamilton v. St. Louis-San Francisco Ry. Co.

• Decision Date: 10 October 1927
• Citation: 300 S.W. 787
• Parties: HAMILTON v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

300 S.W. 787

HAMILTON v. ST. LOUIS-SAN FRANCISCO RY. CO.

Supreme Court of Missouri, Division No. 2.

October 10, 1927.

Motion for Rehearing Overruled December 12, 1927.

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

Suit by Maud J. Hamilton, administratrix of the estate of George Fenger, deceased, against the St. Louis-San Francisco Railway Company. Judgment for plaintiff. From an order sustaining defendant's motion for a new trial, plaintiff appeals. Affirmed, and cause remanded.

Charles P. Noell, of St. Louis (Glen Mohler. of St. Louis, of counsel), for appellant. E. T. Miller and A. P. Stewart, both of St. Louis, for respondent.

HENWOOD, C.

This is a suit for damages under the act of Congress, known as the Federal Employers' Liability Act (45 USCA §§ 51-59; U. S. Comp. St. §§ 8657-8665), filed in the circuit court of the city of St. Louis by the (plaintiff) appellant, as administratrix of the estate of George Fenger 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 ranger was struck by the waterspout of defendant's water tank near Moselle, Mo., 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."

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 42 years of age, and, excepting a temporary absence of two months, had been employed by defendant as a brakeman for a period of 5 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 11 p. m., as head brakeman on Extra 43, west bound, with engine No. 43 and 40 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, 34 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, 28 miles west of Pacific and 16 miles west of Moselle, Stanton being designated in the dispatcher's orders as a meeting point with the third section of train No. 34, east bound. 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 6 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 30 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 2 feet long and 6 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 2 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 the truss rods or stringers of the bridge, 527 feet west of the water tank. One of plaintiff's witnesses (Ledbetter), who was employed at the plant of the St. Louis Material & Supply Company near the bridge, testified on this subject, as follows:

"I looked at this bridge and saw some marks on the bridge. It looked like marked where something had been scraped down on the side of the bridge. They were about eight feet above the top of the rail above the face of the bridge from the end of the ties. There were marks and scratches on the paint as if it had been rubbed hard. It looked like some one had drug down there and fell, like a shoe heel, filled with tacks or something like that. This was on one of those uprights or a ladder post about two feet ahead of the place where I saw the blood stains. The post would be about three or three and a half feet from the clearance of a train on the track. From the outside of the cap to this iron I was talking about would be about two feet and a half. I knew George Fanger, and would judge that from the front of his chest to the back of his shoulders would be about 14 or 15 inches."

"This ladder post is a wider metal beam than the others."

After the accident was reported, Extra 43 was held at Moselle until the arrival of the east-bound train (third section of No. 34). The crew of the east-bound train assisted in removing Fanger's body from the bridge and then continued its trip eastward, crossing the bridge and passing the water tank. Extra 43's engine then backed up its entire train and took water at the water tank before starting west. The waterspout was found In its normal position.

Plaintiff placed the fireman (Duncan) on the witness stand and the following is gathered from his testimony:

"My attention was attracted under the bridge." (Italics ours.)

"I do not recall passing the water tank that night and heard no crash or noise. When we got on the bridge I heard a crash of glass. The cab windows were broke in and the little deflector or storm window was torn off. It throwed glass inside the cab and you could not help noticing it. It was these forward windows here on Defendant's Exhibit No. 3, the little deflector back of that. The front window of the cab was not broken. It was the forward side window on the fireman's side. There were probably two or three of the panes...