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

Decision Date23 May 1925
Docket NumberNo. 24957.,24957.
Citation274 S.W. 1079
CourtMissouri Supreme Court
PartiesKIDD v. CHICAGO, R. I. & P. RY. CO.

Appeal from Circuit Court, Grundy County; L. B. Woods, Judge.

Action by Nellie Kidd, administratrix of Clyde Kidd, deceased, for the benefit of herself and deceased's minor children, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition of remittitur.

Luther Burns, of Topeka, Kan., and H. S. Conrad, L. E. Durham, and Hale flouts, all of Kansas City, for appellant.

A. G. Knight, Platt Hubbell, and Geo. H. Hubbell, all of Trenton, for respondent.

SEDDON, C.

Action by plaintiff, the widow of Clyde Kidd, as administratrix of her late husband's estate, for the benefit of herself and deceased's minor children, to recover damages for the death of said Clyde Kidd by reason of the alleged negligence of defendant. Plaintiff seeks recovery under the federal Employers' Liability Act of April 22, 1908, as amended on April 5, 1910 (U. S. Compiled Statutes, §§ 8657-8665), and also under the federal Locomotive Boiler Act of February 17, 1911, as amended on March 4, 1915 (U. S. Compiled Statutes, §§ 8630-8639d).

Decedent was instantly killed by passenger train No. 57 on one of defendant's main tracks in the city of Trenton, Mo., about 6:35 o'clock on the morning of October 24, 1922. Defendant's double-track railroad enters Trenton from the north and runs south and southeasterly from the north city limits for a distance of slightly less than one mile to defendant's depot and switchyards with their incident yard office, roundhouse, and engineer's washroom; Trenton being a terminal or division point of defendant railway. In order the better to visualize the scene and surroundings of the fatality, it is necessary to bear in mind certain physical objects adjacent to defendant's right of way and their relative distances with respect to each other. Approaching Trenton from the north, the station post, which is exactly one mile north of defendant's depot, is located on the west side of the right of way adjacent to the west track. This station post marks the point at which the usual station whistle, consisting of one long blast, is customarily given by all south-bound trains approaching Trenton. Two semaphores, or electric block signal posts, are located, one on each side of the right of way, 135 feet south of the station post. An overhead street crossing or bridge, used for vehicular and pedestrian traffic, known as Rainbow bridge, bridges defendant's right of way east and west at Twenty-Second street, and is the central object used by the witnesses in fixing the relative distances of other physical objects with respect to the locus in quo. Rainbow bridge is 2,480 feet south of the station post and 2,800 feet north of the Rock Island depot, and the two semaphores above referred to are 2,345 feet north of Rainbow bridge. The northern city limit or corporate boundary line of Trenton is 600 feet south of the station post and 1,880 feet north of Rainbow bridge. The double-track railroad of defendant enters a deep cut having embankments on the east and west sides, the north end of this cut being 1,200 feet south of the station post and 1,280 feet north of Rainbow bridge. This cut is about 2,280 feet long, the south end of the cut being approximately at Mable street crossing, a grade crossing across the right of way, 1,000 feet southeasterly from Rainbow bridge. The steepest place or depth of the embankment on the east side of the cut is 66 feet at a point 100 feet north of Rainbow bridge, and the steepest place or depth of the embankment on the west side of the cut is 48 feet at a point 125 feet north of Rainbow bridge. The two parallel tracks of defendant run north and south for some considerable distance north of the city of Trenton, and continue to run in a north and south direction for a distance of about 800 feet south of the north entrance to the cut. The two parallel tracks then curve to the southeast. The curve in the tracks is 1,020 feet in length. It begins 2,000 feet south of the station post and 480 feet north of Rainbow bridge, and ends 3,020 feet south of the station post and 540 feet south of "Rainbow bridge. The curvature of the tracks is a 3 per cent. curve, and the most westward point in the curve is 100 to 125 feet north of Rainbow bridge. Mable street (a north and south street) and Eighteenth street (an east and west street) intersect at right angles and cross defendant's right of way on grade at approximately, or very near, their intersection. This crossing is known as Mable street crossing, and is the only grade crossing across the railroad tracks between defendant's depot and the north city limit of Trenton. Mable street crossing is 1,000 feet southeasterly from Rainbow bridge, and the south end of the curve in the tracks is 459 feet northerly of Mable street crossing. From a point 459 feet north of Mable street crossing, the two parallel railroad tracks run approximately straight in a southeasterly direction to defendant's depot. The 80 rod customary whistling point for Mable street crossings on the curve about 320 feet north of Rainbow bridge, and about 1,320 feet north of Mable street. Four east and west streets of Trenton (Twenty-Third, Twenty-Fourth, Twenty-Fifth, and Twenty-Sixth streets), north of Rainbow bridge, and three east and west streets (Nineteenth, Twentieth, and Twenty-First streets), south of Rainbow bridge are closed to traffic by reason of the railroad cut and embankments thereof. In Ether words, between the north city limit and Mable street crossing, a distance of 2,880 feet or more than a half mile, there is no crossing for vehicles or pedestrians across defendant's tracks, except the overhead bridge at Twenty-Second street, known as Rainbow bridge. The switchyards, depot, roundhouse, and enginemen's washroom of defendant are located approximately from 1,800 feet to 3,320 feet southeasterly from Rainbow bridge. Deceased, Clyde Kidd, was struck by defendant's passenger train No. 57, south bound into Trenton, at a point on the easterly rail of the westerly track about 200 to 215 feet south of Rainbow bridge, and approximately 325 feet north of the south end of the curve, and about 800 feet north of Mable street crossing and the south end of the railroad cut.

On the morning of October 24, 1922, defendant's freight train, south bound from Allerton, Iowa, to Trenton, Mo., and consisting of 73 cars, some of which were loaded with freight shipments originating outside of the state of Missouri and in process of transportation to points outside of the state of Missouri, and hence in interstate commerce, was being pulled by locomotive engine 3002. At Tindall, a telegraph station a few miles north of Trenton, engineer Ellis of engine 3002 received a train order to run the train down the most eastern track at Trenton. When engine 3002 reached the Q. 0. & K. C. railway crossing, north of the north city limit of Trenton, at about 3:25 a. m., it was out of water, practically out of coal, and the steam was so low the engine was practically useless. Engine 3002 was then cut off from the train, taken to the roundhouse, where it was given coal and water, and then taken back and coupled onto the train. Finding it useless to try to start the train because of the tonnage and upgrade, engineer Ellis whistled for the switch engine, which came after about an hour, and engine 3002 with the help of the switch engine pulled the train to a point where the pilot of engine 3002 was about 200 to 215 feet south of Rainbow bridge, where the engine stalled, because it was again out of steam. The switch engine was then cut off, and engine 3002 with its train of 73 cars was left standing on the east track at 5 o'clock in the morning, with the pilot of engine 3002 some 200 to 215 feet south of Rainbow bridge, where it remained stationary until some time after the fatality in question, which occurred at 6:35 a. m. While engine 3002 was thus stalled, engineer Ellis and fireman Dotson were attempting to get the steam up so as to proceed with the train into the Trenton terminal. On the morning in question, the main throttle and also the drifting throttle, or valve, of engine 3002 were both leaking steam badly. Engineer Ellis made two or three unsuccessful attempts to shut off the drifting throttle while the engine was thus standing on the east track and, in order to prevent a condensation of the steam and the consequent filling of the cylinders of the engine with water, he found it necessary to leave the cylinder cocks open, thereby permitting the steam to escape from the cylinders. The grates of engine 3002 were also out of order so that they could not be shaken, making it necessary to turn on the blower, the purpose of which is to create a draft through the flues and grates and thereby make a hotter fire. The escaping steam from the cylinder cocks made a hissing noise, and the use of the blower made an additional noise. In order to get up steam, the fireman of engine 3002 was putting in fresh, green coal at intervals, causing more or less black smoke to be emitted from the engine. Work reports, covering the period from October 1 to 30, inclusive, 1922, were admitted in evidence showing various repairs requested to be made to engine 3002 by the engineers operating the engine and in turn made, or reported to have been made, by the mechanical department of defendant pursuant to such requests. Such work reports tended to prove the existence, at intervals during October, of steam leaks and defects in the engine similar to those which existed on the day of the fatality. Defendant, however, offered evidence that the steam leaks and shaker trouble of engine 3002 developed after the engine had started upon its round trip to Allerton,...

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