Illinois State Trust Co. v. Missouri Pac. R. Co.

• Decision Date: 24 March 1928
• Docket Number: 26692
• Citation: 5 S.W.2d 368,319 Mo. 608
• Parties: Illinois State Trust Company, Administrator De Bonis Non of Estate of Arthur Bardmass, v. Missouri Pacific Railroad Company, Appellant
• Court: Missouri Supreme Court

5 S.W.2d 368

319 Mo. 608

Illinois State Trust Company, Administrator De Bonis Non of Estate of Arthur Bardmass, v. Missouri Pacific Railroad Company, Appellant

No. 26692

Supreme Court of Missouri

March 24, 1928

Opinion Modifled and Motion for Rehearing Denied April 9 1928.

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Reversed and remanded.

James F. Green, Thomas J. Cole and Merritt U. Hayden for appellant.

(1) There is a failure of proof of facts bringing the case within the provisions of the Safety Appliance Act. Conversely, the facts, established by undisputed evidence, conclusively show that that act does not apply to this case, and this judgment, based upon an alleged violation of that act, cannot be sustained. McCalmont v. Pennsylvania Railroad, 283 F. 736; B. & O. Railroad v. Hoover, 297 F. 919; Southern Railway Co. v. Snyder, 187 F. 492. (2) Even if it be held that the case be one to which the Safety Appliance Act applies, there is a further failure of proof that the alleged violation was the proximate cause of deceased's injury. There is no proof of any causal connection between the alleged violation of the act and deceased's injury. St. Louis & S. F. Ry. Co. v. Conarty, 238 U.S. 243; L. & N. Ry. Co. v. Layton, 243 U.S. 617; Lang, Admx., v. Railroad Co., 255 U.S. 455; Minneapolis Railroad Co. v. Gotschall, 244 U.S. 66; Railway Co. v. Eisenhart, 280 F. 271; McCalmont v. Pennsylvania Railroad, 283 F. 736; Rittenhouse v. St. Louis & S. F. Ry. Co., 299 Mo. 199; Warner v. Railway Co., 178 Mo. 125; Strother v. Railway Co., 188 S.W. 1102; Patton v. Railway Co., 179 U.S. 658.

Charles P. Noell for respondent;

Glen Mohler of counsel.

(1) This court has prescribed the test to be applied in determining whether there was sufficient evidence supporting the verdict. Bueching v. Gas Light Co., 73 Mo. 231; State ex rel. v. Sturgis, 276 Mo. 571; Sexton v. Sexton, 295 Mo. 143. (2) Deceased was killed while between two cars being moved to the repair shops which, owing to a defective coupler, would not couple automatically by impact, and was engaged in repairing the defect so that the cars could be coupled and moved. He was a switchman actually engaged in coupling and moving the cars. The Federal Safety Appliance Act therefore applies, and the casualty is one the occurrence of which the act was intended to prevent. Minnesota Ry. Co. v. Goneau, 269 U.S. 406; C. G. W. Railroad Co. v. Schendel, 267 U.S. 287; Hood v. B. & O. Ry. Co. (Mo.), 269 S.W. 471; Phila. Ry. Co. v. Auchenbach, 16 F.2d 550; Clark v. Erie, 230 F. 478; Chicago Junction Ry. Co. v. King, 169 F. 372; Erie Railroad Co. v. Russell, 183 F. 722; Wright v. Callicut, 225 S.W. 389; B. & O. v. Tittle, 4 F.2d 818; Voelker v. C. M. & St. P., 116 F. 867. (3) The Safety Appliance acts apply to cars being moved to repair shops for repairs. Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33; C. & G. W. Ry. Co. v. Schendel, 267 U.S. 287; Chicago Railroad Co. v. Wright, 239 U.S. 548; B. & O. Railroad Co. v. Hoover, 297 F. 919. (4) The preparation of the coupler for the coupling operation by repair and the like, is not an isolated act, but is a connected and indispensable part of the larger act of coupling the cars. Chicago M. & St. P. v. Voelker, 129 F. 527; Minnesota Ry. Co. v. Goneau, 269 U.S. 406; Phila. Ry. v. Auchenbach, 16 F.2d 550; Hood v. B. & O. Ry. Co. (Mo.), 259 S.W. 471. (5) It became necessary for the deceased in moving out the cars to go between the ends of the cars which due to the defective coupler, did not couple automatically by impact, so as to repair and prepare the coupler for coupling. While so engaged and immediately thereafter another car moved against him and he was killed. The violation of the Safety Appliance Act was thus the proximate cause of the death. Chicago Great Western Ry. Co. v. Schendel, 267 U.S. 287; Callahan v. C. & O. Ry. Co., 263 S.W. 341; York v. St. L. I. M. & S. (Ark.), 110 S.W. 803; Hood v. B. & O. Ry. Co., 259 S.W. 471; Erie Railroad Co. v. Russell, 183 F. 722; Chicago Junc. Ry. Co. v. King, 169 F. 372; Clark v. Erie, 230 F. 478; Voelker v. Railroad, 116 F. 867; Minn. Railroad Co. v. Goneau, 269 U.S. 406; Phila. Ry. Co. v. Auchenbach, 16 F.2d 550; Chicago, R. I. & P. Railroad Co. v. Brown, 229 U.S. 317; Davis v. Wolfe, 263 U.S. 239.

OPINION

Blair, J.

Myrtle Bardmass, as administratrix of the estate of Arthur Bardmass, deceased, instituted this suit in the Circuit Court of the City of St. Louis, claiming damages for the death of said Arthur Bardmass. Upon trial she recovered judgment for $ 20,000 and defendant appealed. Upon suggestion in this court of the resignation of Myrtle Bardmass as administratrix and the appointment by the Probate Court of St. Clair County, Illinois, of the Illinois State Trust Company as administrator de bonis non of said estate, said administrator was substituted as party respondent.

Myrtle Bardmass was the wife of Arthur Bardmass, who, while employed as a switchman by appellant, was killed on October 8, 1923, by the collision of two freight cars in the yards of appellant at Dupo, Illinois. A posthumous child of deceased was born to Myrtle Bardmass, subsequent to the filing of the petition, in which said child was referred to as an unborn child.

The action was brought under the Federal Employers' Liability Act and the sole ground of negligence alleged in the petition is that appellant used in interstate commerce on its railroad line cars which were "not equipped with couplers coupling automatically by impact and which could be coupled without the necessity of men going between the ends of the cars, in violation of the laws of the United States and of the Safety Appliance Act of March 2, 1893, 27 Statutes at Large 531, Chapter 196, as amended by Act of March 2, 1903, 32 Statutes at Large 943, Chapter 976, so that at the time the said Arthur Bardmass received the above-mentioned mortal injuries it was necessary for the said Bardmass, in the exercise of his ordinary duties as a switchman in attempting to and in order to couple the said cars, to go between the ends of same for the purpose of coupling them, and while he was in between the ends of the said cars attempting to insert a certain lug, which was missing from the coupler of one of the cars, and while he was preparing said coupler in the performance of his duty to effect a coupling, one of said cars moved against the said Arthur Bardmass, now deceased, catching him between the two drawbars and crushing and killing him instantly."

In the view we take of the case it is unnecessary to make an extended statement of the facts. For the purposes of this opinion, but without so deciding, we will assume the controverted facts that both deceased and appellant were engaged in interstate commerce at the time the deceased was killed and that the facts make the Federal Safety Appliance Act applicable to this case, if the violation of said act be deemed the proximate cause of the death of Bardmass.

Myrtle Bardmass was the lawful wife of deceased and the posthumous child is his child. He was twenty-four years of age at the time of his death. He was then earning $ 200 per month and was living with and supporting his wife. He was foreman of a switching crew in the Dupo yards. On the night of October 8, 1923, Bardmass and his crew undertook to move a string of freight cars standing on track 11. The engine was coupled to the south car of the string. When the engine moved backward only one car moved with it. The engine and this car moved away about one and one-half carlengths before the engine was stopped on signal from Bardmass. He then examined the coupler on the car at the south end of the string and discovered that a lug was missing and that its absence permitted the couplers to separate. As the engine was needing water, Bardmass directed the engineer to "cut off and go get water." One of the switchmen was sent to his supper at the same time.

It appears that the engine had moved the car attached to it a little farther away from the string before the engineer received the order to "cut off." It was stopped about two and a half car-lengths of the south end of the remaining string of cars. It does not appear whether or not the brakes on this car were set. So far as the record discloses, the track at that point was on level ground. There is no testimony showing any reason why this car should move, even if the brakes had not been set.

After the engine started to get water, Bardmass procured a lug and undertook to insert it in the defective coupler. In doing so he took a position between the rails in front of the coupler. While he was so engaged the car, which had been uncoupled from the engine and left standing just to the south, moved silently and unobserved to the north until it collided with the south car of the string. The cause of its movement is not disclosed by the evidence. There is positive testimony that it was not moving immediately after the engine was uncoupled from it. Bardmass was caught between the two cars. His head was crushed by the impact of the couplers and he died instantly.

We have not set out the evidence at any length and have only stated such facts as have a bearing upon the issue which we deem decisive of this case. Bardmass was not killed in a coupling or uncoupling movement nor as the result of such movement. We are satisfied that the alleged violation of the safety Appliance Act was not the proximate cause of his death, even assuming that the evidence made a case under the Federal Employers' Liability Act. The proximate cause of his death was the unexpected and unexplained movement of the freight car which collided with the other cars. The cause of such collision was not the violation of the act. Its...