Kurn v. Reese. Adm'x.

• Decision Date: 12 January 1943
• Docket Number: Case Number: 29456
• Citation: 1943 OK 15,133 P.2d 880,192 Okla. 78
• Parties: KURN et al. v. REESE. Adm'x.
• Court: Oklahoma Supreme Court

1943 OK 15

133 P.2d 880

192 Okla. 78

KURN et al. v. REESE. Adm'x.

Case Number: 29456

Supreme Court of Oklahoma

Decided: January 12, 1943

Syllabus

¶0 MASTER AND SERVANT - Recovery under Federal Employers' Liability Act for death of railroad engineer barred where caused by his disobedience of standing rule of railroad.

A railroad engineer who, while operating his train, disobeys specific standing rules of his employer and is injured as a result thereof, is guilty of primary negligence, and no recovery can be had for such injury under the Federal Employers' Liability Act (45 U. S. C. A. §§ 51-60).

Appeal from District Court, Garfield County; J. W. Bird, Judge.

Action to recover damages for wrongful death under Federal Employers' Liability Act by Pearl C. Reese, administratrix of the estate of Howard Reese, against J. M. Kurn et al., trustees of the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendants appeal. Reversed.

J. W. Jamison, of St. Louis, Mo., and Cruce, Satterfield & Grigsby, of Oklahoma City, for plaintiffs in error.

Ratner, McAlister & Mattox, of Parsons, Kan., and Simons, McKnight, Simons, Mitchell & McKnight, of Enid, for defendant in error.

GIBSON, V. C. J.

¶1 This is an action for wrongful death prosecuted pursuant to the Employers' Liability Act, 45 U. S. C. A. §§ 51-60.

¶2 The deceased was a 1ocomotive engineer in the employment of the defendant railroad company. He drove his engine into defendant's railway yards at Winfield, Kan., and collided with the rear end of a train standing on the main line. His death resulted.

¶3 Certain allegations of negligence were directed at the crew in charge of the train ahead, but the cause was submitted to the jury wholly on the question of the comparative negligence of the deceased and that of his fellow servant, the fireman, as alleged in the respective pleadings of the parties. In this respect the plaintiff charged that the fireman was negligent in not maintaining a proper lookout, and in not warning the deceased of the presence of the train ahead, while defendant charged that the accident was the proximate result of deceased's own negligence in not obeying certain specific rules directly applicable in the particular case.

¶4 Judgment for $3,750 was rendered on the verdict for plaintiff, and defendant appeals, charging error in the trial court's refusal to direct a verdict.

¶5 In actions of this general character the employee cannot recover if his injury is attributable wholly to his own act, but recovery is not barred by his contributory negligence. If the injury results in whole or in part from the negligence of another of the defendant's employees, the defendant is liable under the express terms of the act. The act not only abolished the fellow servant rule, but provides that the contributory negligence of the injured employee "shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." Illinois Central Ry. Co. V. Skaggs, 240 U. S. 66, 36 S. Ct. 249, 60 L. Ed. 528. The inquiry, then, in the ordinary case is whether there was neglect on the part of the employer, and if the injury resulted in whole or in part from the negligence of another of its employees, the defendant is liable. Id.

¶6 Plaintiff concedes no act of negligence on the part of her intestate, but takes the position that the verdict is fully supported by the evidence of negligence on the part of the fireman, and is unassailable in view of the instructions whereby the question of the negligence of both the deceased and the fireman was left to the jury under the statute and general rule stated above.

¶7 On the other hand, the defendant says that due to the particular facts and circumstances of this case, it does not fall within the scope of the act permitting recovery for the negligence of a fellow employee notwithstanding the contributory negligence of the injured party. It is contended that the act of the deceased in violating a specific rule of the defendant company with reference to the mode of operation of the engine while within the yard limits constituted negligence and the sole and proximate cause of the accident, and sufficient to defeat the action; that under the evidence the question was one of law and should not have been submitted to the jury. Davis v. Kennedy, 266 U. S. 147, 45 S. Ct. 33, 69 L. Ed. 212. The company rule in question reads as follows:

"Yard limits will be indicated by 'yard limit' boards. Within yard limits the main track or tracks may be used, protecting against first-class trains. Second and inferior class and extra trains must move within yard limits prepared to stop unless the main track is seen or known to be clear."

¶8 It is admitted for the purpose of this appeal that the deceased engineer was operating under the above rule at the time of the accident. After entering the yards at Winfield his duty at all times was to drive his engine in such a manner as to be prepared to stop unless he knew or could see that the main track was clear.

¶9 In agreement with the statute, above, and the federal decisions, by which we are bound, the inquiry here is whether the evidence showed negligence of such character on the part of the fireman that the injury may be said to have resulted "in whole or in part" therefrom.

¶10 On the day of the accident the train on which the deceased was engineer entered the yards at Winfield on the main line from the south. The track at that point forms an S curve, making it impossible for the engineer and fireman to see any considerable distance ahead at any given time. It is readily seen that the view of the two men was alternately restricted as the train proceeded along the track. It was charged and proved that the fireman failed to keep a constant lookout ahead, and did not see the train standing on the main line until too late to permit a stop. The verdict is based upon this alleged negligence.

¶11 In view of the decisions of the Supreme Court of the United States and many of the different Circuit Courts of Appeals, we must hold that the accident did not result in whole or in part from the acts of the fireman as aforesaid within the meaning of the statute.

¶12 In Van Derveer v. Delaware, L. & W. R. Co., 84 Fed. 2d 979, the 2nd and 3rd paragraphs of the syllabus read as follows:

"Under Federal Employers' Liability Act, where injury to employee results from combined fault of himself and fellow worker, damages are divided except where injured employee's fault is violation of rule or express instruction (Federal Employers' Liability Act, § 3, 45 U. S. C. A. §53).

"In action against railroad for death of freight conductor who was killed when freight car on which he was riding during switching operations was sideswiped by locomotive on adjoining track after freight conductor had changed two of switches lined up for movement of locomotive and cars on adjoining track in violation of rule of railroad, question of railroad's liability held insufficient for jury (Federal Employers' Liability Act, § 3, 45 U. S. C. A. § 53)."

¶13 In the body of the opinion the following language is found:

"Therefore, the only question is whether Van Derveer's breach of the rule bars the action.

"When an injury to one employee results from the combined fault of himself and a fellow-worker, the damages are divided (sec. 53, title 45, U. S. Code [45 U. S. C. A. § 53]); but an exception has grown up when the injured employee's fault is the violation of a rule or an express instruction. Great Northern Ry. Co. v. Wiles, 240 U. S. 444, 36 S. Ct. 406, 60 L. Ed. 732, is scarcely an instance, though sometimes cited as such. It is better classed as a case where the injured person, having before him the consequences of another's fault, does not do what he can to avoid them. The exception first appeared, so far as we can find, in Frese v. Chicago, B. & Q. R. Co., 263 U. S. 1, 44 S. Ct. 1, 68 L. Ed. 131, where a locomotive driver failed to stop his train at a crossing, as required by a rule of the road. He was, of course, on the right side of his cab and his fireman was on the left, whence came the colliding train; the court seemed to think it doubtful whether the fireman had kept a bad lookout, but went on to say that since the duty was primarily the driver's, it was irrelevant whether he had or not. It has at times been questioned whether the decision should not be limited to situations where the injured person is the superior of the other employee on whose fault he must rely to recover. That would explain not only Frese v. Chicago, B. & Q. R. Co., supra, but Unadilla Valley Ry. Co. v. Caldine, 278 U. S. 139, 49 S. Ct. 91, 73 L. Ed. 224, because the deceased conductor directed the driver to go on, contrary to the rule. True, the dispatcher was also negligent in that case in failing to tell the conductor that the train with which he collided was approaching, but the court said that the message would have merely given the conductor another motive to obey the rule. It is a little hard to see why that might not have been enough to have induced obedience, but if the contrary was intended, the decision is consistent with the supposed gloss. When the same accident was before us in Unadilla Valley Ry. Co. v. Dibble. 31 F. 2d 239, we applied the doctrine to the driver whom the conductor had directed to break the rule; and that was plainly wrong if the doctrine is limited as suggested. In Davis v. Kennedy, 266 U. S. 147, 45 S. Ct. 33, 69 L. Ed. 212, it did not appear that the negligent fellow workers were under the driver's authority, and almost certainly they were not; therefore, it also seems contrary to the limitation. The Sixth Circuit held the same thing in Southern Ry. Co. v. Hylton (C.C.A.) 37 F. 2d 843, and we did so again in Paster v. Pennsylvania R. R., 43 F. 2d 908. Southern Ry. Co. v. Youngblood, 286 U. S. 313, 52 S. Ct. 518, 76 L. Ed. 1124, turned upon the absence of any

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