Kilburn v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 09 April 1921
• Docket Number: No. 22017.,22017.
• Citation: 289 Mo. 75,232 S.W. 1017
• Parties: KILBURN v. CHICAGO, M. & SY. P. RY. CO.
• Court: Missouri Supreme Court

323 S.W. 1017

289 Mo. 75

KILBURN v. CHICAGO, M. & SY. P. RY. CO.

No. 22017.

Supreme Court of Missouri, Division No. 1.

April 9, 1921.

Motion for Rehearing and Motion to Transfer to Court en Banc Denied June 6, 1921.

Motion to Set Aside Order Overruling Motion to Transfer to Court en Banc Denied July 11, 1921.

Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.

Action by Priscilla Kilburn, as widow and administratrix of Orley V. Kilburn, deceased, against the Chicago, Milwaukee & St. Paul Railway Company, brought under the federal Employers' Liability Act, to recover for the death of her husband while a fireman in defendant's employ. Judgment for the plaintiff, and defendant appeals. Affirmed.

Fred S. Hudson, of Kansas City, for appellant.

Platt Hubbell and Geo. H. Hubbell, both of Trenton, for respondent.

GRAVES, J.

Plaintiff is the widow and administratrix of Orley V. Kilburn, deceased. She sues under the federal Employer's Liability Act of 1908 (U. S. Comp. St. §§ 8657-8665), as amended in 1910 (36 Stat. 291). Orley V. Kilburn was in the employ of the defendant as fireman of engines. By his decease he left his wife and four minor children who were dependent upon him. Defendant operated an interstate railroad, and deceased was running as fireman on an interstate train. His run on this train (a fast passenger train) was from Kansas City, Mo., to Laredo, Mo., and via Liberty, Mo. The negligence averred in the petition is as follows:

"After leaving Kansas City, and before arriving at Liberty, Mo., the piston rod on the left low-pressure cylinder of the locomotive engine of said train was broken off, and the front end of the left cylinder was bursted, allowing steam to escape from said cylinder.

"Instead of changing engines at Liberty, Mo., and instead of procuring another engine, the defendant, acting through its officers, servants, and agents, negligently required the deceased, Orley V. Kilburn, as such fireman, to continue to operate said locomotive engine and to serve as the fireman of the same all the way from Liberty, Mo., to Laredo, Mo.; and the defendant then and there negligently failed to change engines at Liberty; and the defendant negligently failed to change engines between Liberty and Laredo, and the defendant then and there negligently failed to furnish a reasonably safe engine for the use of the deceased as such fireman between Liberty and Laredo; and the defendant then and there negligently failed to so repair and remedy said defects in said engine, in such a manner as to prevent the escape of large quantities of steam from the left side and cylinder of said engine into the cab thereof; and the defendant then and there, and thereby, negligently required said Orley V. Kilburn to labor and work in a place which was not reasonably safe, and to operate a locomotive engine which was not reasonably safe.

"After the breaking of said piston rod, as aforesaid, said locomotive engine was not in reasonably proper condition, and was not reasonably safe to operate in the service and use to which the same was put; and said locomotive engine could not be so operated without unnecessary peril to life and limb.

"All the way from Liberty, Mo., to Laredo, Mo., on said trip and `run,' large quantities of steam and vapor rolled out of said cylinder and rolled out of said left side of said locomotive engine and passed into the cab of said locomotive engine, whereby said Orley V. Kilburn was required to inhale and breath said steam and vapor while at work, and whereby the clothing of the said Orley V. Kilburn became thoroughly saturated with said steam and vapor, and became thoroughly wet, and whereby the body of the said Orley V. Kilburn became wet and chilled; and by reason of inhaling said steam and vapor, and by reason of his clothing and body becoming saturated and wet and chilled by said steam and vapor, and by reason of said negligence and negligent acts of the defendant, the said Orley V. Kilburn contracted pneumonia, and became affected by the disease of pneumonia, as a result of which the said Orley V. Kilburn was totally disabled from doing any kind of labor on December 5, and was confined to his bed on and after December 6, 1915; and as a result of which exposure to steam and vapor and said disease of pneumonia caused thereby, the said Orley V. Kilburn died at Laredo, Grundy county, Mo., on December 13, 1915."

By the petition the date of these negligent acts is fixed as either of the date of November 28th or the date of December 2d, of the year 1915. Damages were asked in the sum of $60,000, and a verdict obtained for $15,000, upon which the judgment appealed from herein was entered.

By answer the defendant (1) admitted that it was a Wisconsin corporation, doing business under the laws of Missouri, (2) admits that Kilburn was, on November 28, 1915, its fireman on the passenger train described in the petition, known as the Southwest Limited, (3) a plea of contributory negligence, (4) a plea of assumption of risk, and (5) a general denial. The record shows no reply, but the cause was tried as if one had been filed.

The assignment of errors cover several matters, all of which will be noted in the opinion, but the first of these is that the case should not have been submitted to the jury. Pertinent facts will follow under the points made in the course of the opinion.

I. The pertinent facts upon the demurrer may and should be grouped in three classes: (1) Those bearing on the negligence of the defendant; (2) those bearing upon the proximate cause of the death of plaintiff's husband; and (3) those bearing upon the matters of contributory negligence and assumption of risk.

(1) It appears that deceased was the fireman on defendant's passenger train running from Kansas City, Mo., to Chicago, Ill. At 5:55 p. m. of November 28, 1915, this train left Kansas City for Chicago. The run of deceased and his engineer ended at Laredo, Mo., some 80 miles beyond Liberty, Mo., another station on this line of railroad. At Coburn, a station out some 5 miles from the union station in Kansas City, the defendant had and maintained a roundhouse and machine shops for its engines on this division of its road. The deceased and his engineer left the roundhouse at 4:30 of that evening, on a large compound engine, numbered 3500. The train left Kansas City at 5:55, but when a mile west of Liberty, the piston rod on the lower cylinder on the left side of the engine broke, and a large portion of the front end of the cylinder was blown out. When steam was being used this permitted quantities of low pressure steam to escape, and if the engine was running fast this steam would envelop the cab and working place of deceased between the cab and coal tender. There is conflict as to the amount of the escaping steam and conflict as to how much would reach the working place of deceased. It is agreed that an engine in this condition required more water and coal than if the engine had been in shape. The train stopped at Liberty. The plaintiff used as a witness the engineer, one Dider. This witness said:

"Q. You mean steam went out of the front end of the low-pressure cylinder? A. Yes, sir.

"Q. This steam, instead of going out the stack, went out the front end of the low-pressure cylinder? A. Yes, sir.

"Q. Just tell what you did at Liberty, when you arrived at Liberty. A. Well, we arrived at Liberty. told the fireman, `We will get water here, and I will go back, and tell them that we broke the left low-pressure piston, and we would go along, and do the best we could'—told them we was ready to quit any time we got an. engine to relieve us. We got along so well we practically made running time all the way along."

In fact, with some 17 minutes of unforeseen stops, the train reached Laredo just 19 minutes late. Later on the engineer says that he told the operator at Liberty to tell the dispatcher that he had blown out the lower-pressure cylinder on the left side, and that he would go on and do the best they could, and for the dispatcher to keep tab upon him. The engineer took out his train Without hearing from the dispatcher, or knowing that the Liberty operator actually sent the message. The train continued at a speed of 40 miles per hour, or near that, and landed at Laredo without further incident other than the escaping steam.

The evidence conflicts as to the duties of the fireman, knowing as he did the condition of his engine before leaving Liberty. Plaintiff showed that the engineer was the boss of the engine crew, and that his directions went. Defendant showed that a fireman could refuse to work and stop the train for a new engine to arrive. It does not appear that anything further was done toward getting a new engine, either from the shops at Coburg, 13 miles from Liberty, or at any place after leaving Liberty. These are the facts bearing upon defendant's alleged negligence.

(2) The deceased died on December 13th, of lobar pneumonia. It is claimed that, on this run from Liberty to Laredo (80 miles) this escaping steam thoroughly drenched his clothes, which occasioned a deep-seated cold, which, on December 6th, forced him to quit his work by reason of an attack of lobar pneumonia. He worked continuously from November 28th until the morning of December 6th, when he had to give up his engine (a freight engine upon which he was the engineer), and he returned upon a passing passenger train to his home, where he arrived at about noon, and shortly thereafter called his family physician, who happened also to be the local doctor at Laredo for defendant.

The evidence for plaintiff tends to show that his clothes were very wet when he reached Laredo on November 28th; that he left his overalls and jumper in his engine, and they were wet throughout; that he put on a dry suit in the cab of the engine, and went home, but the wife says that his underwear was so wet that by twisting it the water would run out. The evidence...