Satterlee v. St. Louis-San Francisco Ry. Co.

• Citation: 82 S.W.2d 69,336 Mo. 943
• Parties: Pearl Satterlee, Administratrix of Ray A. Satterlee, v. St. Louis-San Francisco Railway Company, Appellant
• Decision Date: 17 April 1935
• Court: Missouri Supreme Court

82 S.W.2d 69

336 Mo. 943

Pearl Satterlee, Administratrix of Ray A. Satterlee, v. St. Louis-San Francisco Railway Company, Appellant

Supreme Court of Missouri

April 17, 1935

Appeal from Jackson Circuit Court; Hon. Jasper C. Bell Judge.

Reversed and remanded.

Joseph W. Jamison, Henry S. Conrad, L. E. Durham, Hale Houts and I M. Lee for appellant.

(1) There can be no recovery under the Federal Employers' Liability Act and Boiler Inspection Act upon proof merely that an employee was injured or killed. There can be no recovery in the absence of proof beyond speculation and conjecture both of the negligence consisting of violation of the Boiler Inspection Act and that such negligence was the proximate cause of the injury or death of the employee. 45 U.S.C. A., secs. 23, 51; Fryer v. Ry. Co., 333 Mo 754; Robison v. Ry. Co., 64 S.W.2d 661; Riley v. Wabash, 328 Mo. 910; Baltimore & Ohio Railroad v. Groeger, 266 U.S. 521; New York Cent. v. Ambrose. 280 U.S. 486; C. M. & St. P. Ry. v. Coogan, 271 U.S. 478; Northern Pac. Railroad v. Bobo, 54 S.Ct. 265; Atchison, T. & S. F. v. Toops, 281 U.S. 354; Atchison, T. & S. F. v. Saxon, 284 U.S. 458; Patton v. Railroad Co., 179 U.S. 664; Lynch v. Railroad Co., 58 F.2d 177; Pennsylvania v. Chamberlain, 288 U.S. 333; Coin v. Lounge Co., 222 Mo. 508; Strother v. Railroad Co., 188 S.W. 1105; Hamilton v. Ry. Co., 318 Mo. 135; St. Louis-S. F. Ry. v. Mills, 271 U.S. 344; Gunning v. Cooley, 281 U.S. 90; Philadelphia & R. Ry. v. Thirouin, 9 F.2d 858. (a) There was no evidence tending to show that deceased fell and was injured by reason of any alleged defective or insufficient tender. Indeed there was no evidence that he fell from the tender at all. Patton v. Railroad Co., supra; Shidloski v. Railroad Co., 64 S.W.2d 264; Grange v. Ry. Co., 69 S.W.2d 957; Fryer v. Ry. Co., supra; Robinson v. Ry. Co., 64 S.W.2d 661; Patton v. Railroad Co., 179 U.S. 664; Lang v. Railroad Co., 255 U.S. 455, 65 L.Ed. 729; Davis v. Wolfe, 263 U.S. 239, 68 L.Ed. 284; Burnett v. Railroad Co., 33 F.2d 580; Lynch v. Railroad Co., 58 F.2d 178; Harper v. Terminal Co., 187 Mo. 586, 86 S.W. 99; Kane v. Railroad Co., 251 Mo. 27, 157 S.W. 644; Hamilton v. Ry. Co., 318 Mo. 135, 300 S.W. 787; Reading Co. v. Boyer, 6 F.2d 185; Pennsylvania & R. Railroad v. Thirouin, 9 F.2d 858; Wheelock v. Freiwald, 66 F.2d 698; Atchison, T. & S. F. Ry. Co. v. Toops, 281 U.S. 355, 74 L.Ed. 896; Atchison, T. & S. F. Ry. Co. v. Saxon, 284 U.S. 458, 76 L.Ed. 397; Tetwiler v. Railroad Co., 242 Mo. 194; Southern Ry. v. Walter, 284 U.S. 190; Trigg v. Transit Co., 215 Mo. 540; Guthrie v. Holmes, 272 Mo. 252; Mockowik v. Railroad Co., 196 Mo. 571; Yarnell v. Railroad Co., 113 Mo. 579; Looney v. Railroad Co., 200 U.S. 488; State ex rel. v. Cox. 298 Mo. 433. (b) There was no evidence of insufficiency or defect in the tender under the Boiler Inspection Act (45 U.S.C. A., sec. 23) alleged in plaintiff's petition and submitted by her instructions as negligence on the part of the defendant. The part of the tender in question, by the undisputed evidence of both parties, was equipped in full compliance with the orders and rules of the Interstate Commerce Commission promulgated under the Safety Appliance Acts and such equipment was free from defect. Such fact was conclusive of the sufficiency of the tender under the Boiler Inspection Act. Napier v. Atlantic Coast Line, 272 U.S. 611; Vandalia Railroad Co. v. Pub. Serv. Comm., 242 U.S. 255, 61 L.Ed. 276; Central Vermont Ry. v. Perry, 10 F.2d 132; Erie Railroad v. Lindquist, 27 F.2d 99; Landcaster v. Allen, 217 S.W. 1032; Payne v. Albright, 235 S.W. 288; Mahutga v. Ry. Co., 234 N.W. 474; Louisville, etc., Bridge Co. v. United States, 249 U.S. 534, 63 L.Ed. 757; Southern Pac. Co. v. Berkshire, 254 U.S. 415, 65 L.Ed. 335; Auschwitz v. Ry. Co., 178 N.E. 403; Baltimore & Ohio Railroad Co. v. Groeger, 266 U.S. 521, 69 L.Ed. 419; Hyde v. Railroad Co., 60 S.W.2d 630; Davis v. Manry, 266 U.S. 401; 2 Roberts, Federal Liability of Carriers (2 Ed.), pp. 2048, 2049-2050. (c) If compliance with Interstate Commerce Commission rules was not conclusive there would still be an absence of any evidence that the portions of the tender complained of by plaintiff were not "in proper condition and safe to operate in the service to which the same" were "put, that the same" might "be employed in the active service of such carrier without unnecessary peril of life or limb" in violation of the Boiler Inspection Act. There was no evidence that the parts of the tender in question were not equipped in accordance with ordinary care and there was no evidence that the equipment was out of repair. Baltimore & Ohio Railroad v. Groeger, 266 U.S. 521; Chicago & N. W. Ry. Co. v. Bower, 241 U.S. 474, 60 L.Ed. 1107; Patton v. Railroad Co., 179 U.S. 664, 45 L.Ed. 361; Washington, etc., Ry. Co. v. McDade, 135 U.S. 570, 34 L.Ed. 235; Riley v. Wabash, 328 Mo. 910; Fryer v. Ry. Co., 63 S.W.2d 47; Fredericks v. Railroad Co., 26 F.2d 716; N. Y. C. & H. Railroad Co. v. Banker, 224 F. 355; Auschwitz v. Railroad Co., 179 N.E. 403, 45 U.S.C. A. 22, 45 U.S.C. A., secs. 51-59; Ford v. McAdoo, 131 N.E. 876, certiorari denied, 257 U.S. 641; Tuttle v. Ry. Co., 122 U.S. 189, 30 L.Ed. 1114; Chicago & Eastern Ill. Railroad Co. v. Driscoll. 176 Ill. 330, 52 N.E. 921; Lynch v. Railroad Co., 58 F.2d 177. (2) Instruction One, with the theories that deceased fell off the rear end of the tender in attempting to go across the rear or get on the ladder, was without support in the evidence and contrary to the only evidence in the case on the subject which was to the effect that deceased reached the top of the engine. It was also a roving commission as to negligence. Pennsylvania Railroad v. Chamberlain, 288 U.S. 342; Patton v. Railroad Co., 179 U.S. 664; Southern Railroad v. Walters, 284 U.S. 190; Tetwiler v. Railroad, 242 Mo. 194; Trigg v. Transit Co., 215 Mo. 540; Guthrie v. Holmes, 272 Mo. 252; Mockowik v. Railroad Co., 196 Mo. 571; Allen v. Transit Co., 183 Mo. 432; Owens v. McCleary, 313 Mo. 224; Pevesdorf v. Union Electric Co., 64 S.W.2d 946. (a) Instruction Two was erroneous because it constituted a roving commission and even authorized finding of violation of the Boiler Inspection Act and recovery as for negligence of the defendant by reason of the "condition" of the top of the tender, irrespective of any mechanical defect or insufficiency. Allen v. Transit Co., 183 Mo. 432; Owens v. McCleary, 313 Mo. 224; Pedesdorf v. Union Electric Co., 64 S.W.2d 946; Boiler Inspection Act, 45 U.S.C. A., sec. 23; Riley v. Ry. Co., 328 Mo. 919; Ford v. Railroad Co., 54 F.2d 343, certiorari denied, 285 U.S. 549; Erie Railroad v. Linquist, 27 F.2d 98; Reeves v. Ry. Co., 179 N.W. 690; Slater v. Ry. Co., 178 N.W. 814; O'Dea v. Byram, 222 N.W. 520.

Thomas C. Swanson, Trusty & Pugh and Guy W. Green, Jr., for for respondent.

The demurrers were properly overruled for the series of reasons set out at the beginning of the argument under this point. For the sake of brevity they will not be detailed here. Roberts' Fed. Liability of Carriers, 2068; Ill. Cent. Railroad Co. v. Williams, 242 U.S. 466; Senate Document 166, 70th Congress, pp. 3287, 3288; 2 Roberts Fed. Liability Carriers, p. 1246; B. & O. Ry. Co. v. Groeger, 266 U.S. 521; Gerow v. Ry. Co., 128 S.E. 345, certiorri denied, 269 U.S. 584; Watkins v. Railroad Co., 138 A. 315; Mahutga v. Ry. Co., 234 N.W. 474; Payne v. Albright, 235 S.W. 288; Lancaster, etc., v. Allen, 217 S.W. 1032; Napier v. Atlantic, etc., Co., 272 U.S. 605; Great Northern, etc., Co. v. Donaldson, 246 U.S. 121; Davis v. Manry, 266 U.S. 401; Johnson v. So. Pacific, 196 U.S. 1; United States v. Ry. Co., 42 F.2d 248; Philadelphia, etc., Co., v. Winkler, 56 A. 112; Fry v. Rock Island, 157 Minn. 52, 195 N.W. 629, certiorari denied 263 U.S. 723; Western Co. v. Meister, 140 S.E. 905; Grant v. Atlantic, etc., Co., 147 S.E. 919; Watkins v. Railroad Co., 146 A. 865; Railroad v. Beltz, 10 F.2d 74; Staten Island Railroad Co. v. Pub. Serv. Comm., 16 F.2d 313; Southern Ry. v. Crockett, 234 U.S. 725; Erie Ry. Co. v. Lindquist, 27 F.2d 98; United States v. Duluth, 281 F. 347; Northwestern Pac. v. Bobo, 54 S.Ct. 263; Patton v. Ry. Co., 179 U.S. 658; Railway v. Coogan, 271 U.S. 472; N. Y. C. v. Ambrose, 280 U.S. 486; A. T. & S. F. Ry. Co. v. Toops, 50 S.Ct. 281; State v. Haid, 28 S.W.2d 97; Stewart v. Laclede Co., 241 S.W. 909; Hatchett v. United Rys. Co., 175 S.W. 878; Settle v. Railroad, 127 Mo. 336; Daly v. Pryor, 198 S.W. 91; Curlin v. St. Louis, etc., Co., 232 S.W. 215; Freeman v. K. C. Pub. Serv. Co., 30 S.W.2d 176; Young v. Wheelock, 64 S.W.2d 950; Kimmie v. Railroad Co., 66 S.W.2d 561; Henry v. Ry. Co., 61 S.W.2d 342; Glasco, etc., Co. v. Union, etc., Co., 61 S.W.2d 957; Lobach v. Ry. Co., 172 Mo.App. 278; State v. Ellison, 268 Mo. 239; Brooks v. Mo. Pub. Co., 242 S.W. 433; Burtch v. Railroad Co., 236 S.W. 338; Wecker v. Grafeman-McIntosh Ice Cream Co., 31 S.W.2d 977; Teutenberg v. St. Louis Pub. Serv. Co., 41 S.W.2d 956; Tate v. Tyzzer, 234 S.W. 1038; Martin v. Railroad Co., 46 S.W.2d 149; Griggs v. Rys. Co., 228 S.W. 508; Halt v. Railroad Co., 279 S.W. 150; Berkbigler v. Scott, 275 S.W. 599; T. & R. Co. v. Cannon, 296 F. 302; State ex rel. v. Bland, 64 S.W.2d 638.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

The plaintiff as administratrix of her deceased husband recovered judgment for his death while in defendant's employ as head brakeman on an interstate freight train running from Afton, Oklahoma, to Kansas City Missouri. The death occurred at Baxter Springs, Kansas, where the deceased fell from the rear end of the tender attached to the locomotive and was crushed by the wheels of the freight cars following it. The case is bottomed on a violation of the Federal Boiler...