Lorton v. Missouri Pacific Railroad Company

• Decision Date: 19 December 1924
• Docket Number: 24631
• Citation: 267 S.W. 385,306 Mo. 125
• Parties: HAZEL ROSELLA LORTON, Administratrix of Estate of FOUNT H. LORTON, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

267 S.W. 385

306 Mo. 125

HAZEL ROSELLA LORTON, Administratrix of Estate of FOUNT H. LORTON, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant

No. 24631

Supreme Court of Missouri

December 19, 1924

Motion for Rehearing Overruled December 30, 1924.

Appeal from St. Louis City Circuit Court; Hon. Victor H Falkenhainer, Judge.

Affirmed.

Edward J. White, James F. Green and Merritt U. Hayden for appellant.

(1) This suit is based upon an alleged violation of the Act of Congress known as the Safety Appliance Act(27 Stat. L. 531).The burden was imposed, by law, upon respondent to prove not only that appellant violated this act, but that the condition which resulted from such violation was the proximate cause of the death of her intestate.Railroad v. Conarty,238 U.S. 243;Railroad v. Layton,243 U.S. 617;Lang v. Railroad Co.,255 U.S. 455;Davis v. Wolfe,263 U.S. 239;Railway Co. v. Eisenhart,280 F. 271;McCalmont v. Railroad,283 F. 736;Warner v. Ry Co.,178 Mo. 125;Swearingen v. Railroad,221 Mo. 644.(2) The defective coupler on the car was not the proximate cause of the injuries which resulted in the death of respondent's intestate.Its condition at the time of and immediately prior to, the accident did not necessitate any action on the part of deceased which required him to be around, or in the vicinity of, the coupler, or in any danger of injury as the cars came together, and he was not in the performance of any duty for appellant when he went into or while he remained in danger between the cars.There is a failure of proof of any reason for his going in between the cars.His duties required him to be elsewhere than between these cars or near enough to the defective coupler to be in any danger of injury from the cars coming together.The evidence offered by respondent tends to establish that this coupler was not only inoperative, but could not be made operative for coupling by Lorton, and there is no evidence that it was a part of his duties to repair this coupler.Railroad v. Conarty,238 U.S. 243;Railroad v. Layton,243 U.S. 617;Lang v. Railroad,255 U.S. 455;Davis v. Wolfe,263 U.S. 239;Ry. Co. v. Eisenhart,280 F. 271;McCalmont v. Railroad,283 F. 736.(3) The negligence of Lorton was the independent, intervening, efficient and sole cause of the injuries which resulted in his death.Railroad v. Conarty,238 U.S. 243;Railway v. Wiles,240 U.S. 444.(4) There was no evidence upon which to base a finding by the jury of the "present cash value of the future pecuniary benefit" of which either the respondent or her children are deprived by the death of Lorton, nor is there any evidence from which the jury could make "adequate allowance for the earning power of money."The instruction afforded no guide whatever for the assistance of the jury in arriving at the amount of its verdict.Railway Co. v. Kelly,241 U.S. 485.(5) The verdict is excessive.Midwest Bank & Trust Co. v. Davis, 233 S.W. 406.

Mark D. Eagleton for respondent.

(1) Lorton's duty required him to go between the ends of the cars which had separated by reason of a defective coupler.In using this coupler the railroad company violated the terms and provisions of the Safety Appliance Act.Railroad v. Layton,243 U.S. 617;Davis etc. v. Wolfe,263 U.S. 239;Texas & Pac. Ry. Co. v. Rigsby,241 U.S. 33.(2) The pleadings did not charge Lorton with negligence.There was no evidence of same.Contributory negligence is not even a defense in diminution of damages where there is a violation of the terms of the Safety Appliance Act.Grand Trunk Ry. Co. v. Lindsay,233 U.S. 42.(3)Plaintiff's instruction on the measure of damages followed the language of the Supreme Court of the United States in Railway v. Kelly,241 U.S. 485.(4) The verdict is not excessive.Lorton left surviving him a young wife and two small children.The evidence showed his regular earnings were $ 185 per month, and these earnings were not made during a period of time when wages were abnormally high.Bank v. Davis,233 S.W. 406;Laughlin v. Railway,275 Mo. 471;Crecelius v. Railroad,284 Mo. 26;McIntyre v. Railway,227 S.W. 1047;Southern Ry. v. Bennett,233 U.S. 80;So. Pac. Ry. v. Vaughn,165 S.W. 885;Antonio Ry. v. Littleton,180 S.W. 1194;Gulf Ry. v. Beezley,153 S.W. 1171;M. K. & T. Ry. v. Williams,117 S.W. 1043;Antonio Ry. v. Williams, 158 S.W. 1171.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

This is an action by plaintiff, as administratrix of the estate of her deceased husband, Fount H. Lorton, for the benefit of herself and her two infant children, to recover damages for his death under the Federal Employers' Liability Act(U.S. Comp. Stat. 1918, secs. 8657-8665) and Section 2 of the Safety Appliance Act(U.S. Comp. Stat. 1918, sec. 8606).

The petition, in addition to other specific acts of negligence pleaded, alleges that deceased, on November 20, 1921, was in the employ of defendant as a switchman and was engaged in his duties for defendant in its railroad yards in St. Louis, Missouri, with a switching engine and crew, in moving and switching cars in interstate commerce, and while deceased was necessarily between two such railroad cars, for the purpose of adjusting or fixing the coupling device thereof, he was crushed and fatally injured between them, as a direct and proximate result of defendant's negligence, and that by reason of defects and insufficiency, due to defendant's negligence, in its cars, appliances and equipment, and its violation of the provisions of the aforesaid laws of the United States, in that said car was not equipped with couplers coupling automatically by impact, or which could be uncoupled without the necessity of men going between the ends of said cars, the deceased was necessarily required to and did go between said cars and was injured, and as a direct and proximate result of defendant's negligence and the violation of said laws he received the injuries which resulted in his death.

Defendant's answer was a general denial.

The trial resulted in a verdict for plaintiff in the sum of $ 20,000, and from the judgment thereon defendant has appealed to this court.

Plaintiff's intestate, Fount H. Lorton, was fatally injured while in defendant's employ as a switchman, about six o'clock in the evening of November 20, 1921, after dark.He was injured in the Eighteenth Street railroad yards of defendant, which consist of a number of tracks, extending in an easterly and westerly direction from Eighteenth Street on the east to Twenty-first Street on the west.The tracks curve somewhat to the south as they extend toward the west.Deceased was a member of a switching crew consisting of a foreman, Martin, and four switchmen, Lorton, Gregg, Linton and McKee.The switch engine was manned by engineer Harris and fireman Hoops.The other members of the crew were two switch-tenders, Bowers and Walsh.Five members of the crew testified as witnesses at the trial.Switchmen Gregg and Linton and the engine fireman, Hoops, appeared as witnesses for plaintiff.The engineer, Harris, and the crew foreman, Martin appeared as witnesses for defendant.

A freight train, consisting of some nineteen or twenty cars had come in off the road and had been left standing on one of the tracks in the yards.Several of the switching crew, including Lorton, the deceased, rode up on the foot board of the switch engine to Twenty-first Street, and the engine headed in on the west end of the track and coupled onto the west end of this string or train of cars.The switch engine was headed east, so that the engineer was on the south or right-hand side of the engine.After the engine had coupled onto the train, it started to shove the train of cars down the track toward the east.The switching movement was being made on Track Number 11.The crew distributed themselves along the train.The deceased, Lorton, was known as the head man, and his regular or usual position was next to or near the engine, and he took a position on top of either the next or the second car from the engine.The foreman, Martin, assumed a position near the east end of the train, close to Eighteenth Street, while switchmen Gregg and McKee were located somewhere east of Martin.Switchman Linton took a position near Martin, just east of the Eighteenth Street viaduct.It appears to have been a duty of Lorton, as head man, to pass the signals from the foreman and the other switchmen along to the engineer.In other words, as expressed by one witness, "he is the last man to give the signal" to the engineer.The signals on this particular switching movement were given either from the top of the train or on the south side, or engineer's side, of the train.It being dark, the signals were given by lighted lanterns.After the engine had pushed the train a short distance toward the east, the engineer received a stop signal, given, as he testified, by Lorton from the top of the box car next to the engine.Upon stopping the engine, a separation of the train occurred about five or six cars from the engine.Thirteen or fourteen cars on the east end of the train drifted to the east along the track, while five or six cars attached to the engine on the west end remained standing still on the track.Some of the crew appear to have immediately realized, or thought, that a separation or parting of the train had occurred.Switchmen Gregg and McKee, who were with the east end of the train, boarded the drifting section and brought it to a stop.When the separation occurred, switchman Linton and foreman Martin were together just east of the Eighteenth Street viaduct, about two car-lengths west of the extreme east end of the cut of cars.Thinking the train had broken in two, Martin sent Linton up toward the west end to see what was...