Robison v. Chicago & Eastern Ill. Ry. Co.

• Decision Date: 10 November 1933
• Docket Number: No. 31155.,31155.
• Citation: 64 S.W.2d 660
• Parties: ANNA E. ROBISON and EARL ROBISON, Administrators of the Estate of D.M. ROBISON, v. CHICAGO AND EASTERN ILLINOIS RAILWAY COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

64 S.W.2d 660

ANNA E. ROBISON and EARL ROBISON, Administrators of the Estate of D.M. ROBISON, v. CHICAGO AND EASTERN ILLINOIS RAILWAY COMPANY, a Corporation, Appellant.

No. 31155.

Supreme Court of Missouri, Division 1.

November 10, 1933.^*

Appeal from Circuit Court of City of St. Louis. — Hon. James F. Green, Judge.

REVERSED.

Jones, Hocker, Sullivan & Gladney and Vincent L. Boisaubin for appellant.

(1) A mere violation of the statute with respect to the safety of a boiler or locomotive does not give rise to an action for damages under the Boiler Inspection Act. The violation must be the proximate cause of the injury. 2 Roberts' Federal Liabilities of Carriers, p. 1714; Railroad v. Swearingen, 239 U.S. 339; Railroad v. McWhirter, 229 U.S. 265; Lang v. Railroad Co., 255 U.S. 461; Railroad v. Toops, 281 U.S. 355; Railroad v. Coogan, 271 U.S. 474; Watson v. Ga. So. Ry. Co., 136 S.E. 922; Kane v. Railroad, 251 Mo. 13; Hamilton, Admr., v. St. L.S.F. Ry. Co., 318 Mo. 123. (2) Plaintiffs, to recover, must show a "causal connection" between the defect complained of and the injury, and carry the burden of doing this. Railroad v. Ambrose, 280 U.S. 490; Watson v. Ga. So. Ry. Co., 136 S.E. 921; Railroad v. Chamberlain, 77 L. Ed. 503; Sparkman v. Railroad, 191 Mo. App. 473. (3) Where the "causal connection" is to be arrived at by speculation or conjecture, the case should not be submitted to the jury; or, if submitted, the verdict should be set aside. It is not enough to show that the explosion may have resulted from one of several causes; and where the evidence is no more than evenly balanced plaintiff fails to make a case. Mere inferences will not be permitted to prevail over proven facts. 2 Roberts, Federal Liab. of Carriers, p. 1717; Railroad v. Ambrose, 280 U.S. 490; Atchison, T. & S.F. Ry. v. Toops, 281 U.S. 355; Lynch v. Railroad, 58 Fed. (2d) 177; Burnett v. Railroad, 33 Fed. (2d) 580; Railroad Co. v. Chamberlain, 77 L. Ed. 503 (U.S.); Sparkman v. Railroad, 191 Mo. App. 472; Kane v. Railroad, 251 Mo. 13; Hamilton, Admr., v. St. L.S.F. Ry. Co., 318 Mo. 123. (4) The physical facts in this case showed that the defective stay bolts did not cause or even contribute to the explosion. Mathews v. Railroad, 202 N.W. 899. (5) The jury were not sufficiently or properly instructed as to the measure of damages. In cases of this sort, in determining the present cash value of future pecuniary benefits during the life expectancy of the deceased, the jury must take into account the cost of maintenance of deceased, had he lived, and must discount the amount of the allowance over the period of expectancy. Under the facts, the maximum amount of the verdict is susceptible of exact mathematical calculation. It is excessive. Ches. & Ohio Ry. Co. v. Kelly, 241 U.S. 489; Jones v. Railroad, 78 So. 570.

Eagleton, Henwood & Waechter and Frank P. Aschemeyer for respondents.

(1) Defendant's instructions in the nature of demurrers to the evidence were properly refused, because: (a) Plaintiff must be given the benefit of all the favorable evidence in the case, together with all of the favorable inferences that may reasonably be drawn therefrom. Thomassen v. West St. Louis W. & L. Co., 278 S.W. 979; Evans v. West St. Louis W. & L. Co., 28 S.W. 979; Keppler v. Wells, 238 S.W. 425; Rau v. Robertson, 260 S.W. 751. (b) So long as there is substantial evidence to sustain a verdict, this court may not pass upon the credibility of the witnesses or the weight of the evidence. Western & Atl. Railroad v. Hughes, 278 U.S. 496; Great Northern Ry. Co. v. Donaldson, 246 U.S. 121. (c) Causal connection or "proximate cause" need not be shown by direct and positive evidence, but may be proved by the surrounding facts and circumstances, together with the reasonable inferences to be drawn therefrom. Where there is substantial evidence of proximate cause it is not necessary for plaintiff to exclude all other possible causes. State ex rel. St. Charles v. Haid, 28 S.W. (2d) 97; Frese v. Wells, 40 S.W. (2d) 654; Messing v. Judge & Dolph Drug Co., 18 S.W. (2d) 417; Lally v. Morris, 26 S.W. (2d) 52; Thompson v. City of Lamar, 17 S.W. (2d) 969; Conner v. Railroad, 181 Mo. 411; Hawkins v. St. Louis-S.F. Ry. Co., 14 S.W. (2d) 674. (d) Under the Federal Employers' Liability Act and the Federal Boiler Inspection Act, defendant's duty to have the boiler of the locomotive in proper condition and safe to operate is absolute. Defendant is liable if a violation of these acts contributed, in whole or in part, to cause decedent's death, and contributory negligence is no defense. In the absence of evidence to the contrary, decedent is presumed to have exercised due care for his own safety. U.S.C.A., Title 45, Secs. 51-57; U.S.C.A., Title 45. Sec. 23; Railroad Co. v. Groeger, 266 U.S. 521; Lehigh Valley Railroad Co. v. Beltz, 10 Fed. (2d) 74; Great Northern Ry. Co. v. Donaldson, 246 U.S. 121; Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33; Erie Railroad Co. v. Lindquist, 27 Fed. (2d) 98; Philadelphia & R. Ry. Co. v. Auchenbach, 16 Fed. (2d) 550. (e) The question of proximate cause is ordinarily for the jury. There was substantial evidence that the broken stay bolts caused the explosion and decedent's death. B. & O. Railroad Co. v. Groeger, 266 U.S. 521; Gila Valley, Globe & N. Ry. Co. v. Hall, 232 U.S. 94; Lovett v. K.C. Term. Ry. Co., 316 Mo. 1246, 295 S.W. 92; Dungan v. Railroad Co., 178 Mo. App. 164, 165 S.W. 1116; White v. Cent. Vermont Ry. Co., 238 S.W. 507; Kidd v. Chicago, R.I. & P. Ry. Co., 310 Mo. 1, 274 S.W. 1079; Schroble v. Railroad Co., 62 Fed. (2d) 993. (f) There was substantial evidence that there was sediment in the boiler with consequent foaming, and that this unsafe condition of the boiler caused the explosion. B. & O. Ry. Co. v. Groeger, 266 U.S. 521. (2) Plaintiff's Instruction 6 on the measure of damages was correct. If defendant desired a more detailed instruction on this subject, it was incumbent on it to offer such an instruction. Western & Atl. Railroad v. Hughes, 278 U.S. 496; L. & N. Railroad v. Holloway, 246 U.S. 525.

ATWOOD, J.

This is an appeal from a judgment for $20,000 obtained by the administrators of the estate of D.M. Robison, deceased, against the Chicago and Eastern Illinois Railway Company on account of the death of Mr. Robison who, along with the fireman and head brakeman, was killed in an explosion of the boiler of one of said railway company's freight locomotives then in his charge.

The action was brought under the Federal Employers' Liability and Boiler Inspection Acts. It was alleged in the petition that the "explosion occurred as a direct and proximate result of the failure on the part of the defendant. its agents and officers, to comply with the terms and provisions of the laws of the United States, known as the Federal Boiler Inspection Act as enacted February 17, 1911, and as amended;" it being further alleged that "said boiler of said locomotive and appurtenances thereof were not in proper condition or sufficient to operate in the service which they were being used as aforesaid, and defendant failed to inspect the aforesaid boiler from time to time as required by the provisions of the above act."

Defendant's answer admitted the employment of plaintiffs' decedent as alleged in the petition and admitted that he sustained injuries by the explosion of the boiler of an engine resulting in his death, but denied each and every other allegation, statement and averment therein contained. The answer further alleged that "the death of the said D.M. Robison was due solely to his own act in permitting the water in the engine of which he had charge to get too low and in failing and neglecting to keep sufficient water in the boiler of said engine; which acts of said deceased directly caused his death."

Plaintiff's reply was a general denial.

Defendant offered a demurrer to the evidence at the close of plaintiffs' case and at the close of the whole case, which demurrers were refused. Appellant's principal contention is that plaintiffs made no case for the jury and that these demurrers should have been sustained.

Mr. Robison was about sixty-two years of age at the time of his death and had been employed by appellant as a locomotive engineer for a period of about twenty-three years immediately preceding this explosion which occurred shortly after midnight on appellant's line of railroad near Salem, Illinois. It is conceded that decedent was at the time employed in interstate commerce so as to bring this case within the purview of the Federal Employers' Liability Act. Section 1 of that act provides that the carrier shall be liable for the injury or death of an employee which results, in whole or in part, from the negligence of any of its officers, agents or employers, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, etc., or other equipment. Section 2 of the Federal Boiler Inspection Act, as amended June 7, 1924, is as follows:

[1] "It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time in accordance with the provisions of sections 28, 29, 30, and 32, and are able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for." [U.S.C.A., Title 45, sec. 23.]

Under this section, as said in B. & O. Railroad Co. v. Groeger, 266 U.S. 521, 527, the carrier's duty "to have the boiler in a safe condition to operate so that it could be used without unnecessary peril to its employees was absolute and continuing. No...