Kilburn v. Chicago, Milwaukee & St. Paul Railway Company

• Decision Date: 11 July 1921
• Citation: 232 S.W. 1017,289 Mo. 75
• Parties: PRISCILLA KILBURN, Administratrix, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

232 S.W. 1017

289 Mo. 75

PRISCILLA KILBURN, Administratrix, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

July 11, 1921

Appeal from Clinton Circuit Court. -- Hon. A. D. Burnes, Judge.

Affirmed.

Fred S Hudson for appellant.

(1) Instruction 1 is erroneous, because it does not properly declare the law. Crecelius v. Ry., 274 Mo. 687; Dowell v. Ry., 190 S.W. 939; Ry. v Earnest, 229 U.S. 114. (2) Instruction 3 is erroneous because the jury is told not to take into consideration the question of contributory negligence or the assumption of risk. Seaboard Air Line v. Horton, 233 U.S. 492. (3) Instruction 12 is erroneous, because it does not properly declare the rule relative to damages in a case of this character, and for the further reason that said instruction authorized a recovery for the physical pain and mental suffering of the deceased. Crecelius v. Ry., 223 S.W. 418, pars. 8 and 9. (4) Remarks of counsel in the opening statement relative to the change of venue and also in comment of plaintiff's attorney as to the court's ruling in his argument to the jury, were inflammatory and prejudicial and an appeal to the prejudice and passion of the jury. Neff v. City of Cameron, 213 Mo. 350; Beck v. Ry., 129 Mo.App. 7; Level v. Ry., 196 Mo. 622; Blyston-Spencer v. Ry., 152 Mo.App. 142; Bishop v. Hunt, 24 Mo.App. 377; Terryson v. Ry., 129 S.W. 409; Jackman v. Ry., 206 S.W. 244. (5) The verdict is the result of prejudice and passion and is founded on conjecture, speculation and guess and not upon the testimony in the case. Harper v. Ry., 186 Mo.App. 308; Lahnick v. Ry., 118 Mo.App. 611; Chilty v. Ry., 148 Mo. 64. (6) The verdict is founded upon testimony that shows that it is just as possible and just as probable that deceased contracted pneumonia at some other time and some other place and in some other way than that charged in the petition. Kelly v. Ry., 141 Mo.App. 492; Warner v. Ry., 178 Mo. 125; Root v. Ry., 195 Mo. 348; Smart v. Kansas City, 91 Mo.App. 586. (7) The demurrer to the evidence should have have been sustained. Authorities under Points 5 and 6. (8) It was error for plaintiff's attorney, during the temporary absence of the court from the bench, and during the closing argument, to read to the jury from a book which was not in evidence.

Platt Hubbell and Geo. H. Hubbell for respondent.

(1) Respondent's instructions numbered 1 and 3 properly declare the law under the Federal Employers Liability Act and the Federal Safety Appliance Act. 8 U. S. Comp. Stat. Ann. (1916), secs. 8631, 8639a, 8612, 8621, 8660, 8659; Moore v. Ry. Co., 268 Mo. 31, 243 U.S. 311, 61 L.Ed. 741; Thornton v. Railroad, 175 N.W. 71; Great No. Ry. Co. v. Donaldson, 246 U.S. 121; Union Pac. Railroad Co. v. Huxoll, 245 U.S. 535, 62 L.Ed. 455; Great No. Railroad Co. v. Otos, 239 U.S. 349; Texas & P. Railroad Co. v. Rigsby, 241 U.S. 33; Cent. Vt. Railroad Co. v. White, 238 U.S. 507, 59 L.Ed. 1433; Richey on F. Em. L. & Saf. App. Act, sec. 54, p. 133; Ry. Co. v. Wagner, 241 U.S. 476, 60 L.Ed. 1110; Grand Trunk Railroad v. Lindsay, 233 U.S. 42, 58 L.Ed. 838; Ann. Cas. 1914C, 168; Lancaster & Wight v. Allen, 207 S.W. 986; Salabrin v. Ann Arbor Ry. Co., 160 N.W. 552, 194 Mich. 458; Kippenbrock v. Wabash Ry. Co., 270 Mo. 479, 194 S.W. 50; Kerringan v. Ry. Co., 90 N.W. 976, 86 Minn. 407; Ry. Co. v. Campbell, 241 U.S. 497, 60 L.Ed. 1037; L. & N. Ry. Co. v. Layton, 243 U.S. 617. (2) Respondent's instruction number 12 properly declares the law in this case. 8 Comp. Stat. Ann. (1916), sec. 8665, p. 9439; Ry. Co. v. Scala, 244 U.S. 630; Ry. Co. v. Craft, 237 U.S. 648, 59 L.Ed. 1160; Railroad Co. v. Leslie, 238 U.S. 559, 59 L.Ed. 1478; Calhoun v. Great No. Ry. Co., 156 N.W. 198; Chesapeake & Ohio Ry. Co. v. Carnahan, 241 U.S. 241; Fullerton v. Fordyce, 144 Mo. 529; Doyle v. Ins. Co., 24 L.Ed. 151, 94 U.S. 535; Ry. Co. v. Barrett, 67 F. 218. (3) The partial and isolated excerpts from the remarks and argument of counsel are not error. Vawter v. Hultz, 112 Mo. 639; 2 Encyc. P. & P. 756, 757; Gibson v. Ry. Co., 131 N.W. 1057; Dean v. Wabash Ry. Co., 229 Mo. 455; Huckshold v. Ry. Co., 90 Mo. 558: Wendler v. Furn. Co., 165 Mo. 542; People v. Shears, 65 P. 295, 133 Cal. 154; State v. Freling-huysen, 45 N.W. 432, 43 Minn. 265; Wright v. State, 38 S.W. (Tex. Civ. App.) 1004; Pennington v. State, 48 S.W. 507; State v. Court, 225 Mo. 616; Ostertag v. Railroad, 261 Mo. 479; Torreyson v. U. Rys. Co., 246 Mo. 706. (4) The defective cylinder and the wetting of the deceased by reason of the escaping steam therefrom on the trip from Liberty to Laredo was the cause of the pneumonia and the death of Kilburn. Hartzler v. Railroad, 140 Mo.App. 665; Beauchamp v. Min. Co., 15 N.W. 64, 50 Mich. 163, 45 Am. Rep. 30; Seckinger v. Mfg. Co., 129 Mo. 605; MacDonald v. Railroad, 219 Mo. 483; Kuenzel v. St. Louis, 278 Mo. 281; Hinkle v. Railroad Co., 199 S.W. 227; Bannister v. Jevne, 151 P. 546, 28 Cal.App. 123; Johnson v. Cont. Cas. Co., 122 Mo.App. 369; Bayne v. Storage Co., 148 N.W. 412, 5 C. C. A. 837; Hastings v. No. Pac. Ry. Co., 53 F. 224; 10 Am. Neg. Cas. 689; Nicholl v. Sweet, 144 N.W. 615, 163 Iowa 683, Ann. Cas. 1916C, 661; Luisi v. Ry. Co., 136 N.W. 322; Murphy v. Railroad, 31 Nev. 120, 101 P. 322, 21 Ann. Cas. 502; 1 Thomp. on Negligence, sec. 154; Ry. Co., v. Buck, 96 Ind. 346, 49 Am. Rep. 168; Hanlon v. Ry. Co., 104 Mo. 381; Ry. Co. v. Miller's Admx., 176 Ky. 701, 197 S.W. 403, 18 C. C. A. 825; Ball v. No. Pac. Ry. Co., 173 P. 1029; N.Y. Cent. Ry. Co. v. Gapinski, 249 F. 346; Tex. & P. Ry. Co. v. Howell, 56 L.Ed. 892, 224 U.S. 577; Maginnis v. Railroad, 268 Mo. 675. (5) It was not improper for respondent's counsel to use the medical book in his argument, as it was only used in connection with the discussion of the testimony of a witness who had adopted the extract as a part of his testimony. Bradley v. City of Spickardsville, 90 Mo.App. 424; Hayes v. Cont. Cas. Co., 98 Mo.App. 410; State v. Oakes, 202 Mo. 105; State v. Brandenburg, 118 Mo. 187.

OPINION

GRAVES, J.

Plaintiff is the widow and administratrix of Orley V. Kilburn, deceased. She sues under the Federal Employers' Liability Act of 1908, as amended in 1910. 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, Missouri, to Laredo, Missouri, via Liberty, Missouri. The negligence averred in the petition is as follows:

"After leaving Kansas City, and before arriving at Liberty, Missouri, the piston rod on the left lowpressure 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, Missouri, 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, Missouri, to Laredo, Missouri; 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, Missouri, to Laredo, Missouri, 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 breathe 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 5th; 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, Missouri, on December 13, 1915."

By the petition the date of these negligent acts are fixed as either of the date of November 28th or the date of December 2nd, of the year 1915. Damages were asked in...