St. L., I. M. & S.R.R. Co. v. McWhirter, Admx.

• Decision Date: 17 November 1911
• Citation: 145 Ky. 427
• Parties: St. Louis, Iron Mountain and Southern Railroad Co. v. McWhirter, Admx.
• Court: Kentucky Court of Appeals

145 Ky. 427

St. Louis, Iron Mountain and Southern Railroad Co. v. McWhirter, Admx.

Court of Appeals of Kentucky.

Decided November 17, 1911.

Appeal from Hickman Circuit Court.

E.T. BULLOCK, R.T. RAILEY for appellant.

EATON & BOYD for appellee.

OPINION OF THE COURT BY JUDGE SETTLE — Affirming.

This action was brought in the Hickman Circuit Court by appellee as administratrix of the estate of her deceased husband, Etwal McWhirter, to recover of appellant, its conductor and engineer, damages for his death, which occurred at Wolf Lake, Illinois, at which place one of appellant's trains ran over his body; he being at the time in appellant's employ as a flagman on the train.

It was, in substance, alleged in the petition, as amended, that in his capacity as flagman and by direction of his superiors, appellee's intestate left Illmo, Missouri, on the train in question at 3:30 o'clock, p.m., February 22nd, 1910, for a run to Bush, Illinois, and was killed at Wolf Lake, Illinois, on the return trip at 7:37 o'clock, a.m., February 23rd, 1910, by the negligence of appellant, its agents and servants in compelling him to remain continuously on duty as flagman on the train for more than sixteen consecutive hours, and also by the negligence of the conductor and engineer of the train in operating it.

It was further alleged in the petition, as amended, that the train by which the appellee's intestate was killed, was at the time of his death engaged in Interstate Commerce, that is in the business of transporting freight between Missouri and Illinois; that in requiring the intestate to serve as a flagman on its train for a longer period than sixteen consecutive hours, appellant violated the provisions of section 2, chapter 2939, United States Compiled Statutes, being part of an act of Congress entitled "An Act to Promote the Safety of Employes and Travelers Upon Railroads by Limiting the Hours of Service of Employes Thereon," which became a law, March 4th, 1907; and also the provisions of another act of Congress entitled "An Act Relating to the Liability of Common Carriers by Railroads to Their Employes in Certain Cases," which became a law April 22nd, 1908.

Appellant's answer, except with respect to appellee's appointment and qualification as administratrix and right to sue as such, traversed the averments of the petition as amended, and in addition, alleged that in entering its service as a flagman appellee's intestate by contract assumed the ordinary risks incident to that service; that his death was an unavoidable accident and resulted from an ordinary risk such as he contracted to assume, for which reason the law imposed upon appellant no liability for his death. These averments were controverted by reply, and on the trial the jury returned a verdict awarding appellee $3,000 damages. Appellant complains of the judgment entered upon the verdict and the refusal of the circuit court to grant it a new trial, hence this appeal.

Section 2, chapter 2939, United States Compiled Statutes, upon which appellee's action was based, reads as follows:

"Section 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this act to require or permit any employe subject to this act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever such employes of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted to again go on duty until he has had at least ten consecutive hours off duty; and no such employe who has been on duty sixteen hours in the aggregate in any twenty-four hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty: Provided, that no operator, train dispatcher, or other employe who by the use of the telegraph or telephone dispatches, reports, transmits, receives or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four hour period in all towers, offices, places, and stations continuously operated night and day, for a longer period than thirteen hours in all towers, offices, places and stations operated only during the day time, except in cases of emergency, when the employes named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-four hour period on not exceeding three days in any week: Provided further, The Interstate Commerce Commission may, after full hearing in any particular case, and for good cause shown, extend the period within which a common carrier shall comply with the provisions of this proviso as to such case."

The evidence shows beyond doubt that the train on which the intestate was a flagman left Illmo, Missouri, at 3:30 p.m. February 22nd, 1910, for its regular run to Bush, Illinois, and return; and that in returning from the latter place to Illmo on the following day, February 23rd, 1910, the train ran over and killed the intestate at Wolf Lake, Illinois, a town and station situated on appellant's railroad. There is some doubt under the evidence whether the intestate's death occurred at 7:35 or 7:37 a.m., February 23rd, 1910, but none whatever that it was as late as 7:35. Guess, appellant's engineer, at the time in charge of the train, testified at the coroner's inquest, immediately following the accident, that the intestate's death occurred at 7:37 a.m., February 23rd, but later testified, in giving his deposition for use on the trial in the court below, that it occurred at 7:35 a.m., February 23rd.

Geo. C. Loper, a witness introduced on the trial by appellant, testified that the intestate was killed at 7:37, a.m., February 23rd, 1910, and no attempt was made by appellant to prove that he was killed earlier than 7:35 a.m. of that day, or that the intestate had not, when killed, been in service as flagman on the train for as much as sixteen hours and five minutes consecutively.

It is immaterial, therefore, whether his death occurred at 7:35 or 7:37 a.m., February 23rd, 1910, as it is patent from the evidence that it occurred after more than sixteen consecutive hours of continuous service by him as a flagman on the one train operating between Illmo, Missouri, and Bush, Illinois.

In thus requiring of the intestate more than sixteen consecutive hours of service, albeit the excess of service over the sixteen hours was but five or seven minutes, appellant violated the statute, supra; and as the death of the intestate from the act of its engineer complained of, occurred while he was engaged in the required continuous service and after the expiration of the sixteen consecutive hours allowed by the statute, there seems to be no escape from the conclusion that the act of appellant in thus extending his service beyond the statutory limit was negligence per se, to which the intestate's death, must as a matter of law, be attributed, and if so the right of appellee to maintain this action cannot be questioned.

We also find from the averments of the petition as amended that appellee asserts the right to recover of appellant the damages claimed on the ground that the death of her intestate was also attributable to the negligence of the conductor, and engineer in charge of the train. The record fails to show any negligence on the part of the conductor, other than his act in continuing the train crew on duty longer than sixteen consecutive hours, but there was some evidence tending to show negligence on the part of the engineer, from which the jury had the right to determine whether it was a concurring cause of the intestate's death.

It appears from the testimony of the engineer himself that the intestate's death occurred under the following circumstances: When the train reached Wolf Lake, the intestate, whose place as flagman was at the front end of the train, was notified by the engineer that it would stop over at that place on account of the sixteen hour law. The intestate was then in the cab of the engine and he at once stepped out of the engine and along the foot board from which he got to the ground ahead of the engine, for the purpose of throwing a switch that the train might be side-tracked. Although in view of the engineer all the time, the latter admitted he did not look to see where he was, or what he did. Very soon after the intestate left the engine the engineer observed the Wolf Lake telegraph operator excitedly signaling him to stop the train, which was then moving at the rate of three or four miles an hour. The engineer immediately stopped the train and upon stepping off the engine was told by the operator he had run over the intestate, whose body he found under the tank wheel cut in two.

In reply to the direct question "How was he killed?" the engineer said, "Performing his duty, going out to set a switch."

According to the testimony of the operator, Loper, who seemed to be the only eye witness to the accident, the intestate left the engine as described by the engineer and ran toward the switch but fell between the rails before reaching it. He then got upon his hands and knees, but before getting to his feet, was run over by the engine. When he fell the operator began signaling the engineer to stop the train, but the latter failed to observe the signals in time to stop the engine before it ran over the intestate.

There was no proof that the manner in which the intestate approached the switch was not the usual and an ordinarily safe way of doing so and of setting the switch; and as he was in plain view of the engineer from the time he left the engine, or would have been if the engineer had maintained a lookout in that direction, the latter, knowing he was going in front of the engine should have kept such lookout for his movements; had he done so there was nothing to prevent his seeing his fall, and with the train going at...