Thompson v. Wabash Ry. Co.

• Citation: 171 S.W. 364,262 Mo. 468
• Decision Date: 02 December 1914
• Docket Number: No. 16662.,16662.
• Parties: THOMPSON v. WABASH RY. CO.
• Court: Missouri Supreme Court

171 S.W. 364

262 Mo. 468

THOMPSON v. WABASH RY. CO.

No. 16662.

Supreme Court of Missouri. Division No. 1.

December 2, 1914.

COMMERCE (§§ 8, 27) — REGULATION — RAILROADS — INTERSTATE COMMERCE.

A fireman on a locomotive, drawing a train of empty cars from one state into a point in another state and along an interstate railroad, is engaged in interstate commerce, and the action for his death must be maintained under the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]).

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Action by Ethel Thompson against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss complaint.

The plaintiff instituted this suit in the circuit court of Randolph county against the defendant to recover $10,000 damages claimed to have been sustained by her by reason of the alleged negligence of the defendant in killing her husband, R. W. Thompson, a railroad fireman, while in the employ of the company. The suit was brought under section 5425, R. S. 1909 of Missouri. A trial was had in the circuit court, which resulted in a judgment in favor of the plaintiff for the sum of $10,000. In due time and in proper form the defendant appealed the cause to this court.

The petition was in conventional form and properly stated a case under said section of the statute. Prior to answering, and in proper time and due form, the defendant filed a petition and bond for a removal of the cause to the Circuit Court of the United States for the Northern Division of the Eastern District of Missouri. The petition set out that the action arose under the act of Congress approved April 22, 1908, entitled "An act relating to the liability of common carriers by railroad to their employés in certain cases"; that it appeared from plaintiff's petition that the defendant was engaged in, and decedent was employed in, interstate commerce at the time of his death (stating the averments of plaintiff's petition); that the question in the suit was whether plaintiff was entitled to recover under the act of Congress approved April 22, 1908, and that the suit involved a controversy with respect to the true meaning and intent of the act of Congress and its operation and effect upon the alleged facts of plaintiff's petition. This petition was overruled, and exceptions were duly saved.

Defendant's amended answer, filed March 14, 1911, upon which it went to trial, was a general denial; also it set out that defendant was engaged in commerce between the states, and that decedent at the time of his death was employed in such commerce; that plaintiff was not the administratrix or personal representative of decedent, and the action was not brought by her in such capacity, as provided by the act of Congress of April 22, 1908, and the plaintiff was not entitled to maintain the action as the widow of decedent; further, that the state circuit court had no jurisdiction, but that the jurisdiction was in the United States Circuit Court. The answer then alleged that the collision was the result of decedent's own negligence, and further was the result of his own negligence directly contributing with others with whom he was engaged in operating the train. The answer also set up the unconstitutionality of the act of Congress approved April 5, 1910 (36 Stat. 291, c. 143 [U. S. Comp. St. 1913, § 8662]), conferring jurisdiction on state courts, as in conflict with section 1, article 3, of the Constitution of the United States and certain amendments thereto, as well as certain provisions of the Constitution of the state of Missouri.

The reply was a general denial.

At the beginning of the trial the defendant objected to the introduction of any evidence under the petition, for the reason that it did not state facts sufficient to constitute a cause of action against the defendant; that the plaintiff could not maintain the action, because it arose under the "federal Railroad Employers' Liability Act of April 22, 1908"; and that the court had no jurisdiction of the cause. This objection was overruled, and exceptions were duly saved.

The facts are few and not disputed, and are subtantially as stated by counsel for respondent:

Respondent's husband, R. W. Thompson, while in the employ of appellant as a locomotive fireman on an extra freight train, was killed in a collision between said freight train and one of defendant's passenger trains, on defendant's line of railroad at a point about 1½ miles south of Glenwood, Mo., on the 28th day of August, 1909. Within six months thereafter, plaintiff, the widow of deceased, brought this action against defendant to recover damages for the death of her said husband, under the provisions of section 5425 of the Revised Statutes of Missouri of 1909; it being claimed by plaintiff that her husband came to his death by reason of the negligence of certain of his coemployés, namely, the engineer and conductor in charge of said freight train, in operating same in so negligent a manner as to cause it to run into and against and to collide with said passenger train. The defendant was operating a railroad for the transportation of freight and passengers from Moberly, in the state of Missouri, to Moulton and other points, in the state of Iowa.

The extra freight train on which plaintiff's said husband was serving as fireman was in charge of Finis McLean as engineer and Warren Cundiff as conductor. There were also a head and rear brakeman on the train. It left Moulton, Iowa, for Moberly, Mo., about 8:45 the morning of the collision, and made but one stop thereafter prior to the collision, that stop being made at Glenwood Junction, a station about one mile north of Glenwood, Mo. It left Glenwood Junction at 9:30, and passed through Glenwood without a stop. The collision occurred at 9:39. The passenger train, with which the extra freight collided, ran daily, except Sunday, between Moberly and points in Iowa, and was run on schedule time, and had superior rights to all extras. It was due at Glenwood at 9:43, and at Glenwood Junction at 9:45. The passenger train was being run by a time card, and the freight train by order. The order under which the engineer and conductor were operating the freight train was to this effect: Extra 259 will run extra Moulton to Moberly, No. 2, engine 327, will wait at east yards Moulton until 10:00 a. m. for second 95, engine 261. Second 95, engine 261, will wait at Glenwood Junction until 9:30 a. m. and at Coatesville until 9:40 a. m. for extra, engine 259. The stop made by the freight train at Glenwood Junction was for the purpose of letting second 95 by. The extra freight train was composed of engine, tender, and empty cars. The collision occurred on the point of a sharp curve, and at that place the passenger train with which the freight collided could not have been seen from the cab of the freight engine a greater distance away than 100 yards. The passenger train was discovered by the engineer of the freight train as soon as it could have been discovered. It was then within 10 car lengths of the freight train. The two trains came together in what is known as a "head-on" collision.

The engineer of the extra freight train accounts for the collision by the fact that both he and the conductor, who had charge of the train, overlooked the day of the week; that is to say, mistook Saturday for Sunday. The engineer received a go-ahead signal from the brakeman and conductor at Glenwood Junction, he whistled for the station at Glenwood and again received a go-ahead signal, and, using the engineer's language, "got the board at the station," or, in other words, the arm of the order board at Glenwood was down, giving the engineer the right to go ahead.

The deceased fireman, R. W. Thompson, at the time of his death had been in the employ of the defendant as a locomotive fireman six or seven months, the greater part of which time he served as an extra fireman, and as such his duties took him all over the Western division of the Wabash Railroad, which has a mileage of about 950 miles. The last two or three months prior to his death he served as fireman with Engineer McLean on trains 67 and 68, which were regular trains between Moberly and Moulton. The trains on which he served met the passenger train with which extra 259 collided many times in the course of that two or three months' employment, but not always, nor even usually, at any one station. In fact, as disclosed by the record of trains on which Fireman Thompson served in the course of the last two or three months of his employment, he had met the passenger train in question at practically every station an the Wabash Railroad between Moberly and Moulton.

On the day of the fatal collision, Engineer McLean and Conductor Cundiff had control and were in charge of the extra freight. The duty of Fireman Thompson was to keep steam on the engine and to watch for signals and to aid in the safety of the train to the extent of his ability. Thompson remained upon the engine at his post of duty, and did not protest to the engineer when the freight train was being run on the time of the passenger train, as shown by the time card. The engineer testified that while going through Coatesville, which is north of Glenwood Junction, that he stated to the fireman and head brakeman that it was Sunday, and that if he could get out of Glenwood Junction at 9:30 he would try to go to Moberly ahead of No. 2, which was the passenger train following. The engineer says that neither the fireman nor head brakeman made any reply to this statement. The head brakeman testified that the engineer turned to him and the fireman and asked if it was Sunday, and that he, the head brakeman, turned to him and said, "This isn't Sunday," and that the fireman said, "No."

At that time the freight train was going through Coatesville, had not reached...