Riley v. Wabash Ry. Co.

• Decision Date: 01 October 1931
• Docket Number: No. 29409.,29409.
• Parties: CHARLES F. RILEY v. WABASH RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

44 S.W.2d 136

CHARLES F. RILEY v. WABASH RAILWAY COMPANY, Appellant.

No. 29409.

Supreme Court of Missouri.

Division Two, October 1, 1931.

Appeal from Daviess Circuit Court. — Hon. Ira D. Beals, Judge.

REVERSED AND REMANDED.

Dudley & Brandom, S.J. Jones and Homer Hall for appellant.

(1) This suit is brought under the Federal Employers' Liability Act, and the rights and obligations of the parties are to be determined by the provisions of that act, and by the applicable principles of the common law as interpreted and applied in the Federal courts. Martin v. Ry. Co., 30 S.W. (2d) 735; Second Employers' Liability Cases, 223 U.S. 1, 55, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L.R.A. (N.S.) 44; Seaboard Air Line Railway v. Horton, 233 U.S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L.R.A. 1915C 1, Ann. Cas. 1915B 475; Quigley v. Hines, 291 Mo. 23, 235 S.W. 1050; Hoch v. Railway Co., 315 Mo. 1199, 287 S.W. 1047. (2) The Federal Employers' Liability Act permits a recovery upon the basis of negligence only, and, therefore, the burden is on plaintiff to adduce reasonable and substantial evidence to show a breach of duty owed by defendant to him in respect of the place of his injury, and that, in whole or in part, his injuries resulted proximately and directly therefrom. Delaware, L. & W. Railroad Co. v. Koske, 279 U.S. 7, 49 Sup. Ct. 202, 73 L. Ed. 578; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 165, 48 Sup. Ct. 215, 72 L. Ed. 513; Scaboard Air Line v. Horton, 233 U.S. 492, 501, 34 Sup. Ct. 635, 58 L. Ed. 1062, L.R.A. 1915C 1. Ann. Cas. 1915B 475; Southern Railway Co. v. Gray Co., 241 U.S. 333, 36 Sup. Ct. 558, 60 L. Ed. 1030. (3) There was no violation of the Boiler Inspection Act, and plaintiff was not entitled to recover under that act, for the reason that there was no evidence that either the locomotive tender or the clinker hook was not in proper condition and safe to operate. The only improper condition, if any existed, was due to the failure of plaintiff to perform his duty, and that issue was made by the pleadings. The court erred therefore in ignoring the defense of contributory negligence and assumption of risk. Erie Railroad Co. v. Lindquist, 27 Fed. (2d) 98; Reeves v. Ry. Co., 179 N.W. 689; Patterson v. Director General, 105 S.E. 746; Boghich v. Railroad Co., 26 Fed. (2d) 361. (4) The defendant was not liable to plaintiff under the Boiler Inspection Act unless the evidence shows that plaintiff was injured as the direct result of a violation of the act. St. Louis, I.M. & S. Ry. Co. v. McWhirter, 229 U.S. 265, 57 L. Ed. 1179; Reeves v. Ry. Co., 179 N.W. 689. (5) The admission of evidence that after the plaintiff was injured the defendant provided hooks or hangers on the side of its tenders and carried clinker hooks in that manner on a few of its engines was erroneous. Alcorn v. Ry. Co., 108 Mo. 81; Schermer v. McMahon, 108 Mo. App. 36; Columbia Ry. Co. v. Hawthorne, 144 U.S. 202; Pribbeno v. Ry. Co., 81 Neb. 657; Tankersley v. Traction Co., 101 Neb. 578. (6) The plaintiff's injury was the direct and sole result of his failure to perform his duty to examine the engine and see that the clinker hook was in proper position, and he is not entitled to recover for such injuries, even though there might have been some negligence on the part of some employee of defendant in failing to put the clinker hook in some particular place on the engine. Frese v. Railroad, 263 U.S. 1, 68 L. Ed. 131; Davis v. Kennedy, 266 U.S. 147, 69 L. Ed. 212; Great Northern Railway Co. v. Wiles, 240 U.S. 444; Flack v. Ry. Co., 285 Mo. 28.

L.B. Gillihan and Miles Elliott for respondent.

(1) The action was brought and tried under, and is controlled by, the Locomotive Boiler Inspection Act, under which it was the absolute duty of defendant to have its locomotive, boiler, tender and appurtenances in safe condition to operate, and, the evidence having shown a violation of that act and that plaintiff was injured as a result of such violation, he was entitled to recover. 45 U.S.C.A. 23; Baltimore & Ohio v. Groeger, 45 Sup. Ct. 169, 226 U.S. 521, 69 L. Ed. 419; Great Northern v. Donaldson, 38 Sup. Ct. 230, 246 U.S. 121, 62 L. Ed. 616; Hines v. Smith, 275 Fed. 766; Frye v. Railroad Co. (Minn.), 195 N.W. 629, certiorari denied, 44 Sup. Ct. 231, 263 U.S. 723, 68 L. Ed. 525; Lehigh Valley v. Beltz, 10 Fed. (2d) 74, certiorari denied, 46 Sup. Ct. 205, 270 U.S. 641, 70 L. Ed. 775; Thornton v. Minneapolis & St. Louis (Iowa), 175 N.W. 71; Davis v. Collen (Tex.), 250 S.W. 305. (2) The action being based on a violation of the Boiler Inspection Act, a statute enacted for the safety of employees, the defenses of contributory negligence and assumption of risk were not available to defendant and the court properly refused to submit those issues. 45 U.S.C.A. 53; 45 U.S.C.A. 54; Union Pacific v. Huxoll, 28 Sup. Ct. 187, 245 U.S. 535, 62 L. Ed. 455; Spokane Railroad Co. v. Campbell, 241 U.S. 497, 60 L. Ed. 1136; Baltimore & Ohio v. Groeger, supra; Lehigh Valley v. Beltz, supra; Davis v. Collen (Tex.), 250 S.W. 305; Great Northern v. Donaldson, supra; Hines v. Smith, supra; Christy v. Wabash, 195 Mo. App. 232, 191 S.W. 241, writ of error dismissed, 246 U.S. 656, 62 L. Ed. 924; McAllister v. Ry. Co. (Mo.), 25 S.W. (2d) 797; Great Northern v. Otos, 239, U.S. 349, 60 L. Ed. 323; Kilburn v. Ry. Co. (Mo.), 232 S.W. 1017; Page v. Payne (Mo.), 240 S.W. 161; Thornton v. Minneapolis & St. Louis, supra; Erie Railroad Co. v. Lindquist, 27 Fed. (2d) 99. (3) Testimony as to the custom and practice of other railroads in carrying the clinker hook on hangers or hooks provided for the purpose on the sill or frame of the tank, was admissible and proper. Woodward v. Missouri Pacific (Mo.), 295 S.W. 98; Cassin v. Lusk, 210 S.W. 906; Norton v. Wheelock, 23 S.W. (2d) 147; Shey v. Cole Co., 21 S.W. (2d) 774. (4) There is no merit in appellant's contention that the court erred in permitting plaintiff to show that after plaintiff's injury, and at the time of trial, defendant's tenders carried the clinker hooks on the sill of the tender. There was no error in the giving or refusing of instructions. Authorities heretofore cited.

WESTHUES, C.

This is an action for damages for personal injuries, alleged to have been received by plaintiff on January 1, 1926, while both plaintiff and defendant were engaged in interstate commerce, and while plaintiff was employed as fireman on one of defendant's passenger locomotives, hauling a passenger train from St. Louis, Missouri, to Omaha, Nebraska, resulting from stepping upon a clinker hook, placed on top of the engine tender, when plaintiff went upon the tender to supply the engine with water, at White Cloud, Iowa. The jury returned a verdict in favor of plaintiff, and assessed his damages at the sum of thirty thousand dollars. Defendant appealed.

The evidence submitted on behalf of plaintiff warrants the finding that, on January 1, 1926, the steam locomotive, on which plaintiff was fireman, reached White Cloud, Iowa, about seven A.M. The train, pulled by said locomotive, originated at St. Louis, Missouri, and was destined for Omaha, Nebraska, arriving there about eight A.M. on January 1st. Stanberry, Missouri, was a division point, and this locomotive, Wabash No. 641, was attached to the train there.

Plaintiff had been in the employ of defendant for three different periods, five, two and eight years, respectively, as fireman. The eight-year period continued to the time of his injury. On this particular morning, the engine had been placed, equipped and ready for service, on the go-out track, to attach to the train leaving Stanberry at four-ten A.M. Engine No. 641 had just been overhauled at Moberly, and the trip made that morning was its first subsequently thereto. A clinker hook was within the equipment, and on this morning, at the time of plaintiff's injury, was lying on the tender, about the middle of the water tank, back of the coal bin. The tender or coal car was attached to the rear of the engine. The purpose of the forepart of the tender was the storage of coal. That of the rear part, the storage of water, supplied at water tanks along the route. A manhole, protected by a cover, permitted the flow of water into the storage tank. A hook, one-half inch in diameter and about five feet in length, was provided to bring the water spout of the outside water tank in juxtaposition to the manhole. This was kept between the manhole and the rear of the tender. On this tender, there was a drop of two feet or more from the coal bin to the roof of the water tank. However, there was provided an oaken step, attached to the coal bin and held up at each corner by small iron posts, to permit passage from the coal bin to the roof of the water tank. The step was placed about midway between. The step, about an inch thick, had a tread of about a foot and extended along the coal bin two feet or more. In proceeding from the engine to the roof of the tank on the tender, one had to climb over the coal in the bin to the oaken step, and then on to the tank. It was the fireman's duty at water tank stations to provide the tender tank with water. During the dark hours, a torch was provided to provide light. At Maryville, Missouri, prior to the arrival at White Cloud, plaintiff, using a torch to see, had let water into the tank of the tender. He did not at that time observe the clinker hook.

On arrival at White Cloud, plaintiff, in the course of his duties, proceeded to the roof of the tender's water tank, to permit the water to flow in. Carrying a torch, he stepped onto the oaken step and then onto the tank, when his foot came in contact with the clinker hook on the roof of the tank, causing him to fall. At this time it was cloudy and pretty dark. Plaintiff did not see the clinker hook until after he stepped on it, nor did he touch it except as he stepped on it. As he proceeded down on the tender tank, he stepped on the clinker hook, lying loose on the top or the...