*1 910 Railroad, 12 C. 255; 35; W. Hulett v. 145 Mo. 86 129,
Mo. 785, J. sec. 216.] appellate jurisdiction, court is that- this without appearing thus Cooley of Appeals. St. Court to the Louis is transferred
the cause concur. Westhues, (7(7., foregoing 0., opinion Fitzsimhons, PER CURIAM: The judges ofAll concur. opinion the court. adopted as Railway Riley Company, Appellant. F. v. Wabash Charles (2d) 136. S. W. Two, 1931. October Division *2 Dudley <&Brandon, S. J.. Jones and Homer Hall for appellant. *3 respondent. Miles Elliott Oillihan and
L. B. damages WESTHUES, C. This is an action for for personal alleged January 1, injuries, plaintiff been received engaged both and defendant were in interstate while employed fireman on de- commerce, while one of *4 passenger locomotives, hauling passenger a train from St. fendant’s Nebraska, resulting stepping upon Missouri, Omaha, to Louis, engine tender, plaintiff the when went hook, top of placed a on clinker engine water, Cloud, at White the with supply to upon the tender plaintiff, and as- a verdict in favor jury returned The Iowa. Defend- thirty thousand’ dollars. damages at sum of the his sessed ant appealed. finding warrants the on behalf submitted evidence The locomotive, on which steam 1, 1926, the January that, on The Cloud, Iowa, seven about reached White fireman, a. was m. Missouri, originated Louis, locomotive, at St. by said train, pulled eight arriving about Nebraska, there Omaha, was destined point, a division Missouri, Stanberry, was January 1st. on M. a. to the train there. 641, was attached No. Wabash locomotive, this for three’different of defendant employ been in the had Plaintiff The as fireman. respectively, eight years, five, two periods, injury. On'this of his time the to continued period eight-year T—i- rH' cv.
particular morning, ready the had placed, been equipped and go:out track, ior on the service, leaving attach to train Stan- the berry Engine at four-ten a. m. just No. 641 had been overhauled Moberly, trip morning at and the subsequent- made that was its first ly A thereto. clinker hook equipment, was within the this and on morning, plaintiff’s injury, lying" tender, at the time was on the tank, of the about the middle water back of bin. the coal The tender engine. purpose or coal car was attached to the rear of the The forepart storage of. the of the tender was the of coal. of the That storage part, water, along supplied rear at water tanks manhole, protected cover, permitted route. A a the flow of water storage A hook, into the tank. one-half inch in diameter about provided bring spout length, five feet in was the water juxtaposition kept outside water tank to the manhole. This was tender, manhole and the rear the tender. On this between the drop of two feet more from the coal bin to the roof there was However, provided step, an oaken tank. water up coal bin and held at corner small iron attached to the each passage from coal bin to roof of water posts, permit midway about between. The about step tank. along a foot thick, a tread of about and extended an inch had proceeding In or more. from the bin feet coal two tender, one had to climb over the coal in of the tank on roof tank. It was step, and then on oaken the bin to the tank provide tank stations to the tender water fireman’s at provide hours, torch was During dark water. Cloud, at White Missouri, prior to the arrival light. Maryville, At tank of the see, had let water' into the using a torch hook. observe the clinker at that time He did tender. duties, course of his Cloud, plaintiff, White On arrival tank, permit the water water of the! tender’s the roof proceeded to step stepped onto the oaken torch, he Carrying a in. to flow in contact with foot came tank, when his then onto causing At time him to fall. tank, on the roof see the clinker hook Plaintiff did not pretty cloudy dark. it except stepped it as he he touch it, nor did stepped on he after until tank, stepped on he the tender on proceeded down it. As he deck of the on the lying loose hook, clinker hook, whereupon middle about stepping right back to his and strike fall him to causing rolled, taking water, After step. of this right-hand corner spine engine cab. coal to tank over he went *5 length and an in about nine feet eight or prongs, about four inches were two one end At in diameter. inch across. When four inches ring, about a other at length, and tbe prongs up down, ring were or edge. tbe stood on was nsed .It to remove clinkers or cinders grate from removing tbe or and for , putting fire, out the but it or was seldom of no when tbe train use. running. many according
For years, to plaintiff’s witnesses, it been bad tbe custom defendant clinker books on two pro- books for purpose, vided that located on tbe of tbe sill tank on left and tbe just tender, eight of tbe During outside above tbe trucks. the last years as fireman in employ defendant, service tbe bad never known clinker book to carried on be tbe tank of engine. particular Wabash to this trip overhauling tbe .Prior engine, book, engine tbe clinker No. had been carried on this just on books, outside, located sill of on on tbe tbe tank above tbe trucks.
Stanberry defendant, maintaining was a terminal of a round- force. On house tbe cross-examination of plaintiff, defendant was permitted tbe trial court to agreement introduce evidence engine men, between defendant and tbe which included engine given that tbe effect “road men will be not less twen- than ty “engines prepare engine;” minutes undisturbed time to that will go-out placed proper go run, be on track condition to out on provided necessary tools, supplies and equipment, with but engine knowing engine from properly not relieve men is does that shortage going reporting out;” “engine or before that equipped where, required places at force is main- men will not be roundhouse grease headlights, up wedges, cups fill neither to set clean tained required supplies on remove they tools will be report required proper . . . but are make locomotives special Tbe rules of de- requiring attention.” this work they starting trip on each “Fireman. Before provide: fendant engines their engine man jointly with see that must required fusees, lamps, torpedoes flags, supplies, signals, signal all train, and that front of their protection tbe ready for use.” proper condition is equipment helper duty of the and bis hostler it was tbe that testified Plaintiff equipment and tools proper engine had tbe that to know duty, starting that not bis out, and it was tank when water However, any way. be was responsible in be would not that be road, at tbe tank while on water in the putting responsible White Cloud. Maryville engine did not have first noticed be said Plaintiff accident; tbe roundhouse after Bluffs Council tbe outside books tbe to know that fireman duty not the it was ready for service it, because tbe equipment proper bad pay any at- he did track, and go-out on tbe when *6 tention as to whether a clinker spont it, hook or on water hook was for they are supposed to be of to there. was custom railroads provide trucks, hooks tank, just on sill of on above the hang which to the clinker hook. As to both inspector evidence. testified
Defendant’s engineer, found, engine the clinker hook was when the arrived just Bluffs, Council on the roof of the tank back of the coal board A step. and under the number men, of railroad familiar equipment with the duties of firemen and the of locomotives and tenders, top testified clinker hooks were on of tank. carried top Clinker hooks were of carried the tender tank on all of locomotives, except operating defendant’s a few from the Stan- berry terminal, but on these no there were hooks prior hooks plaintiff’s clinker There were hooks on carry tanks, placed side of the chains. Witnesses for de- opinion reasonably in their it was safe to fendant testified that against board top up clinker hooks on the tanks coal (cid:127) fastening under the without them. defendant, cross-examination,
A number witnesses stated it would be unsafe if a clinker or laid on the that permit stepping position fireman, as to tank in such a top tank, on it. wit- step coal onto the of the One pile off of the against his the clinker hook over ness railroad carried testified of the tank. the side mechanic, Turley, defendant’s master testified
Witness “It is the comply with the Interstate practice on our railroad Commerce kept whereby tops tanks requirements are Commission practice involved- a rule clean, yes.” answered The possible, tank clean keep, far so objects. examination, Turley On redirect from movable and free hooks; include clinker that he requirement did not stated inspected engines, Wabash inspectors Government present when hooks from the made to remove clinker requirement no against step the coal board. there, though were they tanks, placed on the that, when testified witness Another may engineer expect to fireman hostler, the -and by the go-out track supply man it is it; equipment on have all the engineer’s are all firing tools, tools, tools, the to see that the’duty of fireman it was notwithstanding, engine; placed on -look over necessary tools, to has the he know that they there. see engine at time charge was injured, engineer, where the clinker hooks to defendant’s answer they “Well, always were engine, testified: carried were carried put they time up till the hooks end on the back January the tank on tbe side after further 1926.” Witness that, Bluffs, testified he upon when went the tender tank at Council legs up hook was that, step,. under the behind next; to this coal board. Williams,
One inspector machinist and locomotive for defendant *7 Bluffs, referring particu- Council inspectors to Government and larly one, very inspecting testified. in particular ‘‘He lying tanks, the.back of the if a clinker found out and hook was in give engine, long report the middle he would us a on the and as up against near, anything if it was our hook laid our coal board or nothing near, inches, way, and two or three that wasn’t out of the cross-examination, said: this witness ever said about it.” On tank; lying of be.improper in middle “It would if it was out yes, sir.” the.,go-out engine track witness, 641 for prepared
Another who water in the morning, put sand, he coal and testified that that tank, but that that he saw the clinker and move it or He did not touch he not remember its location. did exact anything to it. it or have do with facts, pertaining
Other to the issues discussed, will be adverted in opinion.
This case arose while and .engaged defendant were in- commerce. decisions, therefore, interstate The Federal statutes and govern rights trial, reference and 51, cited; liability A., of the defendant. U. S. sec. and C. cases [45 1226; Ry. Hayes (Ill.), 86, v. 234 U. S. Wabash Co. 58 L. Ed. Louis 12; Ry. 19, 73 Fla. ville, etc., (1917), v. 74 Watkins Co. So. Rhoda H.) (N. Railroad, v. & M. 138 Atl. Boston 315.] assignments of error. The has a number Defendant briefed following: Was however, 1st. questions case, are decisive jury the Federal under to the properly submitted the case negligence plaintiff, as a alleged 2nd. Did the Inspection.Act? plaintiff’s claim? law, bar matter brought is defendant’s contention this is a case Liability Again Act. Employers’
the Federal contends proven bring that the facts do not the case within the Act, for Inspection' the reason there was or any in the tender no evidence of defect provides S., part in follows: 8631, U. S. C. (Section hook.
“. . . it shall for any carrier, be unlawful of- common its subject act, agents, any ficers or to this use locomotive foreign moving traffic power propelled by steam in interstate appurtenances thereof the boiler of locomotive and unless said operate in the service in safe to proper condition and service the active may employed be put, the same same is moving carrier in of such traffic unnecessary peril without to life limb, inspected and all boilers shall be in ac from time to time provisions cordance with act, be to withstand able regulations prescribed may such test or tests be the rules ” 1911, 103, 2, sec. Stat. 17, hereinafter for. c. 913.] [Feb. 8639a, above S., application Section U. S. C. extended the ' engine. part as follows- section to It reads the tender upon travelers promote safety employees “An act to interstate com-' engaged in by compelling railroads common carriers boilers and suitable equip nierce safe and- their locomotives with hun February seventeenth, nineteen appurtenances- thereto, approved locomotive the entire include eleven, apply dred shall 4, thereof. parts appurtenances all [March tender and 1915, 169, 1, c. sec. 38 Stat. 1192.]”
The substance of Sections 8631 and-8639a, supra, are now con single tained section, C., U. S. Annotated, title sec. 23. case was submitted to theory *8 defect in tender, any the or in parts appurtenances of the or thereof, except clinker proper that the hook was not in place. its pro There was much evidence and con proper as to the to place carry Practically the clinker hook. all of the witnesses that testified lying if the top tank, clinker hook was on plain- the tender where lying, tiff it proper said was it was not in place then its and would danger persons constitute an element of to who would occasion be to on the tank. for The witnesses the testified top tank, the' proper the for clinker hook was on the water stepj against under the the coal board. Plaintiff’s witnesses testified for the clinker hook should have been carried on hooks purpose, on the sill of the tender^ given importance, think it is of under the little instructions We. court, by proper place hook' whether the to by for on side of the tank as contended or be per tank, against board, coal top under the There evidence that contention. was substantial deféndant’s lying- top of, about the middle of on and clinker hook was causing might, step it, did on and position plaintiff in such a subject covering him is as follows: this to instruction fall. The carrying traffic in jury that interstate court instructs “The through officers, acting railway its company, by railroad defendant Riley duty use, and servants, plaintiff owed agents its having all engine and tender use, his locomotive provide operate ba- safe proper condition in appurtenances parts might employed be put, which was the service moving traffilc with- in railway company of defendant active service n or limb. unnecessary life peril out (if “A any) failure perform negligence matter as a of law. are, “You therefore, instructed that you find must Riley and return a verdict in if, his favor greater from the weight evidence, you believe and find that on ques- the occasion in tion defendant, its officers, agents or servants, placed said clinker
hook on, permitted on, same to be top of the tank of said locomotive tender in a loose, insecure position and unsafe and con- dition, and that reason of said being top on of said tank in position such (if you find) and condition so the said and tender was not in proper operate condition and not safe in the service to which it put, you (if and that reason thereof find) so said and tender could not employed be in the active service of defendant railway company moving traffic without un- necessary peril limb, to life or injury any) plaintiff’s (if resulted part presence whole or in from the said clinker hook top on said (if you tank in position such so find condition' be).’’ facts presented then to the was: Did defendant provisions furnishing violate Inspection Act, by lying question, the clinker hook position water unnecessary tank in it an such a to make peril to life and limb? many by plaintiff.
We have examined decisions relied cases, Appliance Safety Act, held or Those where the courts Inspection Act, applicable, to be are cases where there engine, appliance some tender, was some mechanical defect in causing us, thereto, In "the case appurtenant tool before any jury, of whether case was submitted to the tender, of the tools' any part or in defect existed *9 condition, as unsafe not an issue. The furnished was by misplacement a jury, was created was submitted the case report's for cases searching necessary In fireman’s tool. aof determining this guide in enlighten as a us, used might and be Ry. Co., 179 O. P., M. & Chicago, St. find Reeves v. question, we brought to recover the suit was 689. In ease (Minn.) N. W. was switching The'foreman foreman.
damages for the death of a moving step oh a attempting to fall) while result of a as a killed gang up to the leading lower piece A of coal on the engine. court The lower fall. foreman to engine, caused the way of the Supreme The appealed. verdict for directed a question, said: of the disposing Minnesota, Court presence (1) The by appellant: are made “Two contentions Appliance Safety Federal of the violation step was a on the coal 920, St., 8617-8619, not, Comp. 8621-8623); secs. if its but, S. (U.
Act presence prima-facie negligence. evidence of presence piece step a coal on the mentioned does
“That prove Appliance must fol Safety not a of the Federal Act violation Chicago, given in Slater v. St. from the statute the construction low 813. No defect was Ry. Co., 178 N. W. Paul, Minneapolis & Omaha dangerous thing only rendered it step. in the The claimed a-foreign body lodgment temporary thereon. a that had found “ Inspection ‘Boiler Federal Plaintiff contended that the (2) also 8630-8639), amended Comp. St., secs. Act,’ (U. S. so called and in 8639a-8639d), ‘apply as to so St., secs. (U.. Comp. appurte parts and all tender and entire locomotive clude the ’ locomotive en any use unlawful thereof, which makes it nances unless the moving interstate traffic power in gine steam propelled and safe proper condition are in appurtenances thereof boiler and time, creates time to inspection operate, providing be con act must We think of this case. liability on the facts a cases include Act, so Safety Appliance was the strued, as upon lodgment temporary found a has foreign substance some where not the is tender, and or locomotive appliances instrumentalities, came but ordinary use such result of the ’’ cause. accidentally, unforeseen from some case, Chicago, P., Ry. case Slater v. St. M. & and the O. In that Co., (Minn.) 813, W. it was not shown 178 N. that the defendant resulting injury. its company agents caused the obstruction proven responsible tramp it was a In the Slater case tramp displaced ice running The board. the obstruction board, caus cover, projected running so that it above bunker causing his ing brakeman, trip plaintiff, a over following Act Safety Appliance had the speaking The court say: thoroughly “It settled that a violation of this statute creates an liability. absolute v. Minneapolis Ry. & St. Co., Louis [Burho 326, 141 Minn. N. W. and the Federal cases there cited.] question then remains: trespasser Does the fact that a surreptitious ly temporary obstruction like a loose board or has. cover running upon a board of railroad car show a violation of the act running referred to? We think not. The board itself was secure mechanically perfect. There is no hint defect therein material, workmanship, design. ought either as to The statute guaranteeing against not to be construed trespassers, the acts of running at least not unless such acts render board itself me ’ ’ chanically insecure. *10 materially us differs The case before from those this, cases in the justifies finding evidence the that one of defendant’s servants or agents negligently left or the clinker hook on top of the tank in position such a as to it render danger. element of How ever, let us assume that the condition by created the tramp in the Slater ease and the coal on the step in the Reeves.case, were by caused some act on part agents and servants of the defendant company, thereby causing injury to employees. one Would that have constituted a violation Safety Appliance Act, in the or, Slater case? a violation of the Inspection Boiler Act in the Reeves case? We think primary not. The purpose of both Safety Appliance Act and the Inspection Act, is to re quire railway companies to furnish employees their safe standard equipment, free from mechanical defects. This is absolute. question of reasonable care is immaterial. & Ohio [Baltimore Railroad Co. Groeger, 521; v. S. Callen, U. Davis v. 250 W. (Tex.) 305.] There testimony was much in the case before us, that proper place carry to clinker was on the tender under against the coal board. That this was a safe and suitable carry jury might Yet, to it. The have so found and believed. quoted, jury the instruction above was bound to find resulting plaintiffs if the clinker hook misplaced, in following Plaintiff, brief, say in his has reference the instruction: Groeger ruling
“Under case, supra, it would have been jury error to submit to the of whether defendant was required to have hooks on the sill or frame of which the tender on. carry required ap- any particular the clinker hook or was use pliance purpose. So, obeying or contrivance for the the rule case, simply position we submitted the of whether the in an condition and of the clinker hook rendered the tender unsafe danger unnecessary But, or limb. had it been to life created an issue, fully have war- permissible submit the the evidence would finding jury was in fact unsafe that the tender ranted a proper hooks or other provide it with failure to reason of the carrying hook.” safely means for opin- meaning of undoubtedly misinterpreted the Plaintiff has contends, that true, Groeger case, supra. ion jury question whether been to submit would have error it sill frame on hooks on the required to defendant' However, Groeger so holds. case hook. The fact for question to be Groeger court held ease the in the resulted explosion determine, jury whether shortly before leak of a Evidence boiler. a defect a case make sufficient to was held explosion, point be- meaning, its Groeger opinion question. The
922 discussed, thoroughly us, Supreme fore was considered the a of Hampshire, rehearing on motion for in the case of New Court Ry. 138 Co., & Atl. l. 322. the Boston M. c. What Watkins v. quote: applicable here. We therefore there said is court general difficulty is with the as to plaintiff’s Federal rule “The jury may faulty a as of what be submitted to evidence a condition. Inspection up new The under the Boiler Act do not set eases liability con- true, is as upon for fault. the limitation e.; the and ultimate whether tends, the ‘essential —i. one of fact. required by act’—is the condition boiler was 45 521, 531, Groeger, 266 U. S. & v. Ohio Railroad Baltimore 419). is for (69 one 169, L. Ed. The claim that therefore Ct. qualification subject to the evidence jury to decide engine un- found to render the which could be must show a defect ours.) (Italics meaning of act.” within the safe Boiler recover under the order in this case So jury may find Act, must be evidence Inspection defective, a so to constitute appliance was tender or some that the question was submitted No such violation the act defendant. of proof defect only Plaintiff’s of a was jury. evidence defendant, the sill of part hooks on failure, have Defendant contended tender, carry the clinker hook. which to stated, top hook, was on proper place for the above much evidence step, against the coal board. There was under the contrary. carry it, a evidence to was safe no that that however, of whether jury, to the not The was submitted properly equipped tender failed to have the defendant authorizing instruction, a gist plaintiff’s verdict clinker hook. The a- is, jury that the servants against that if the found defendant hook on company, placed the clinker gents of defendant render loose, position, unsafe so tank in a insecure tender injury, then resulting plaintiff’s operate, the tender unsafe Inspection with the Boiler liable, having complied not was defendant was that there jury find require the Act. instruction not The does All the equipped. properly any defect, or agents servants or that defendant’s required to find condi- creating hook, thereby the unsafe misplaced had the clinker tion. recovery
This is not sufficient Safety Appliance Act, Inspection Respondent Act. cites Davis v. Callen, 250 S. W. (Tex.) authority, liability but the as an of in that bar, was based or. a case defect defect being injury. Frye In proximate Chicago, cause of v. Ry. R. I. & P. (Minn.) 629, Co., 195 N. defect W. was found in the links coupling pin of a lifter. To same the chain effect other by respondent. cases cited Tbe basis recovery, in all them, was some mechanical appliance defect in the itself, or a defect in the design, or the construction of the tender, locomotive or which caused the unsafe condition and proximate was the cause Safety Appliance Act Inspection Act, be, must been, liberally and have construed. That mean," however, does not' a construction so as to beyond eases include plain intent scope of the act. We hold that the case should not been submitted to *12 jury under Inspection Act, and that it was error for the court to do so. Plaintiff permitted should be peti- to amend his tion, so as to state a cause action Employers of' Federal Liability Act. v. Union Ry. Co., (Minn.) Pac. 166 N. W. [Castle 767.] question: The second plaintiff’s alleged negligence,'as did a matter law, of bar his Since case must we will not claim? be retried discuss
this length. anticipate at testimony We cannot what will be On offered a retrial. now we hold record before us plaintiff’s negligence, any, not, as if did matter jjar cjajm. of Under the rules the defendant ^ agreement defendant, plaintiff and and the evidence company, the might jury well found them, with reference offered fireman, also plaintiff, furnish was the fully ready equipped engineer, agent or equipped prepared, some fully If it not so service. negligent and derelict not servant company, Kennedy, 266 appellant, Davis v. U. duty. by cited his The cases point. If Q. Ry. Co., 263 v. B. & U. S. 147; C. Frese submitted to a retried it should be accordance the case is Act, Liability Employers Federal governing of law the rules courts. Federal interpreted judgment reversed and the cause is error indicated the For the Fitzsimmons, CC., Cooley concur. remanded. Appellant has PERCURIAM: filed a motion to transfer this case in- question is ground Bane, Federal en
to the Court application volved, “to-wit the construction Employers Federal 23 inspection S. C. A. and the U. Act, Section Appellant cites 51-59.” Liability Act, 45 C. A. U. S. Constitution of Article Six of Amendment of 1890 with the case. motion was taken Missouri. The ' presented disposed This identical Bridge Term. v. St. Louis Merchants’ court in the of McAllister case authority case Ry. (2d) 25 S. W. On the Co., l. c. 792. denied. motion transfer is assigned,
the reasons there The foregoingopinion by Westhues, C., adopt- PERCURIAM: concur. judges All of the opinion ed the court.