Opinion
July 30, 1929.
1. SAFETY APPLIANCE ACT: Violation: Cause of Injury: Defective Coupler: Causal Connection. Two engines hauling an interstate train are cars within the meaning of the Safety Appliance Act, and if the couplers between them, after one broke and gave way, would not couple automatically by impact, the act was violated; but to authorize a recovery for personal injuries by an engineer of one of the locomotives, who went in between them after they broke apart to remove the broken coupler, the violation of the act must have proximately caused or contributed to cause his injury. And where neither plaintiff nor any of the crew was engaged in coupling or uncoupling the locomotives, but he went into the narrow space between them to remove the broken coupler, and for no other purpose, and while engaged in that undertaking, the rest of the train rolled down the slight incline against him, its movement being caused solely because the independent air brake had not been set on the second engine and because the double-heading cock on it had not been cut out, the violation of the act did not cause or contribute to cause the train to roll down against him, and there was no causal connection between the condition of the brakes and the broken coupler.
2. COMMON-LAW NEGLIGENCE: Speculation and Conjecture: Conflicting Testimony. Where there is substantial evidence both to sustain and to disprove a material fact, a finding thereon is not based on speculation and conjecture, but the issue is a matter to be determined by the jury according to what they consider the credible testimony. An interstate freight train was being hauled by two locomotives, and the coupler between them broke, causing both and the train of cars to stop. Plaintiff, who was the engineer of the second locomotive, went into a narrow space between them after they had stopped, to remove the broken coupler, and while so engaged the train or cars rolled down the slight incline and crushed him against the tender ahead. All the witnesses, including plaintiff, agreed that the train would not have moved forward unless the angle cock at the front of the second engine was closed and the double-heading cock cut in and the independent air brake released. Plaintiff testified that before leaving his engine he set the independent air brake and that at the time he left the double-heading cock which controlled the automatic air brakes was cut out, but the conductor and the fireman, who remained on the engine after plaintiff had left, testified that they did not release the independent air brake or cut in the double-heading cock, and there was no one else about the engine to do either of these things. The engineer of the head or forward locomotive testified that immediately after the casualty he climbed upon plaintiff's engine, and found the double-heading cock cut in and the independent air brake not set. If the facts were as testified by plaintiff, either the conductor or fireman released the independent air brake and cut in the double-heading cock, and thereby permitted the train of cars to roll down upon plaintiff. Held, that whether the facts were as testified by plaintiff, or were as testified by the conductor and fireman, was not a matter of speculation and conjecture, but one to be found by the jury according to what they considered the greater weight of the credible evidence.
Corpus Juris-Cyc. References: Master and Servant, 39 C.J., Section 564, p. 448, n. 52; Section 1345, p. 1160, n. 32.
Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.
REVERSED AND REMANDED.
E.T. Miller, A.P. Stewart and C.H. Skinker, Jr., for appellant.
(1) The demurrer to the evidence should have been sustained and the peremptory instruction requested by defendant at the close of the whole case should have been given. (a) The breaking of the coupling between the two engines was not the proximate cause of the accident, but was merely an incident accounting for the presence of the plaintiff between the two engines at the time plaintiff's engine and train of cars rolled or moved against him and, under such circumstances, the defective coupling was not the proximate cause of the accident. Illinois State Trust Co. v. Railroad Co., 5 S.W.2d 368; Rittenhouse v. Railway Co., 299 Mo. 199; St. Louis S.F. Ry. Co. v. Conarty, 238 U.S. 243; Lang v. Railroad Co., 255 U.S. 455; McCalmont v. Railroad Co., 283 F. 736. (b) Under the undisputed evidence the cause of the accident was the movement of the second engine and train of cars thereto attached while plaintiff was between the first and second engines for the purpose of removing the broken coupler. The cause of this movement was wholly a matter of speculation and conjecture as to whether the movement of said engine and train was due to acts or omissions of the defendant, for which defendant would be liable, or acts or omissions of plaintiff, for which defendant would not be liable, and a verdict based on such speculation and conjecture cannot be upheld. Hamilton v. Railway Co., 300 S.W. 787; Warner v. Railroad, 178 Mo. 125; Epperson v. Telegraph Co., 155 Mo. 346; McGrath v. Transit Co., 197 Mo. 97; State ex rel. v. Bland, 313 Mo. 246; Strother v. Railroad, 188 S.W. 1102; Rodgers v. Packing Co., 180 Mo. App. 227; Chicago, etc., Railway Co. v. Coogan, 271 U.S. 478; St. Louis, etc., Railway Co. v. Mills, 271 U.S. 347.
Douglass Inman for respondent.
(1) This is an action under the Federal Employers' Liability Act and proximate cause under that act means a contributing cause, and not the efficient cause, and, as the United States Supreme Court said, to hold that proximate cause must be the efficient cause "would be emptying the statute of its meaning to say that his death did not `result in part' from the negligence of any of the employees' of the railroad." Railroad v. Hadley, 246 U.S. 333; Railroad v. Auchenbach, 16 F.2d 550, certiorari denied, 273 U.S. 761; Railroad v. Campbell, 241 U.S. 497. (2) A locomotive comes within the Safety Appliance Act which requires cars to be equipped with automatic coupler. Railroad v. Wagner, 241 U.S. 483; Pinnell v. Railroad, 231 U.S. 678; Railroad v. Crockett, 234 U.S. 725. (3) Liability to an injured employee under the Safety Appliance Act, springs from "its being made unlawful to use cars not equipped as required, and not from the position the employee may be in or the work which he may be doing at the moment when he is injured." Railroad v. Layton, 243 U.S. 617; Davis v. Wolfe, 263 U.S. 239; Railroad v. Conarty, 238 U.S. 250. (4) Where an employee goes "in between the cars for the purpose of ascertaining and remedying, if possible, the cause of the trouble," and "while between the cars, and engaged in handling the coupler" is injured, then the defective coupler is the cause of the injury, and not merely the occasion for plaintiff being between the cars. Railroad v. Lindsay, 233 U.S. 44; Railroad v. Goneau, 269 U.S. 406; Railroad v. Schendel, 267 U.S. 287; Auchenbach v. Railroad, 8 F.2d 351; Keenan v. Director General, 285 F. 286, certiorari denied, 261 U.S. 616; Railroad v. Auchenbach. 16 F.2d 550, certiorari denied, 273 U.S. 761; Overstreet v. Railroad, 238 F. 565. When plaintiff was hurt he was engaged in a coupling operation because he had to go between the ends of the cars (engines) on account of the defective coupler on his engine, which was in use and when he found he could not repair the coupler it was then necessary to remove the broken parts of the coupler from his engine so that he could move his engine, and couple it up to the train by placing it in front, and the front engine next to the train. His work was a part of this coupling operation. Railroad v. Schendel, 267 U.S. 287; Railroad v. Goneau, 269 U.S. 406. (5) An analysis of the decisions of the United States Supreme Court show five situations where causal connection exists between a defective coupler and an injury to an employee. First: Where an employee is engaged in a coupling or uncoupling movement and goes between the ends of cars on account of a defective coupler for the purpose of effecting a coupling or uncoupling and is injured on account of the cars being moved in an attempt to couple or uncouple. Railroad v. Lindsay, 233 U.S. 42; Hood v. Railroad, 302 Mo. 609. Second: Where an employee in the performance of a duty in connection with a car then in use with a defective coupler goes in to examine the coupler "to ascertain and remedy, if possible, the cause of the trouble," and is injured by the movement of other cars "and without regard to the cause of the movement," or from any cause which would not have happened but for his presence at the end of the car or between the cars due to the defective coupler. Railroad v. Schendel, 267 U.S. 287 (for facts in case see 198 N.W. 450); Railroad v. Goneau, 269 U.S. 406; Railroad v. King, 169 F. 372, (same case 262 U.S. 222, cited with approval 241 U.S. l.c. 39; Railroad v. Russell, 183 F. 722, certiorari denied, 220 U.S. 607; Clark v. Railroad, 230 F. 478; Johnson v. Railroad, 278 F. 643 (cited with approval 220 U.S. 559, note page 576); Railroad v. Voelker, 129 F. 522 (cited with approval in 196 U.S. 18, 241 U.S. 39); Railroad v. Tittle, 4 F.2d 818; Railroad v. Trust Co., 29 F.2d 1; Oelfke v. Railroad, 135 A. 659. Third: Where a car not in use with a defective coupler is standing on a track and an employee goes in to the coupler for the purpose of coupling it to another car in order to use or move it, or in order to uncouple it from another car, which other car is in use or is to be put in use, and is injured by the movement of the car in use or to be put in use, in a coupling or uncoupling movement. Hood v. Railroad, 302 Mo. 609; Railroad v. Auchenbach, 16 F.2d 550, certiorari denied, 273 U.S. 761. Fourth: Where a car with a defective coupler is in use, and the defective condition of the coupler results in a movement, or sets in motion a chain of circumstances that causes injury to an employee, and this "without regard to the position the employee may be in, or the work which he may be doing when injured." Railroad v. Layton, 243 U.S. 617; Railroad v. Gotschall, 244 U.S. 66; Railroad v. Eisenhart, 280 F. 270, certiorari denied, 260 U.S. 723; Keenan v. Director General, 285 F. 286, certiorari denied, 261 U.S. 616; Railroad v. Fessler, 295 F. 650; Carter v. Railroad, 307 Mo. 595. Fifth: Where a coupler on a car in use is not defective, but fails to couple or uncouple as designed and intended because of the manner or method used or employed in making the coupling or uncoupling, or because of the condition of the track, or manner in which the cars are loaded, or other conditions caused by defendant that prevent the coupler from performing its functions as designed and intended. Christy v. Railroad, 195 Mo. App. 232, certiorari denied, 246 U.S. 653; United States v. Railroad, 77 F. 801; Hohenlieter v. Railroad, 177 F. 96. (6) Where an employee is injured while between cars adjusting a coupler on a car not in use and is injured by the movement of other cars against him which is not a coupling movement, or which movement was not caused by a defective coupler, then the employee cannot recover, as there is no causal connection between the injury and the defective coupler. Illinois Trust Co. v. Railroad, 5 S.W.2d 368. (7) The evidence of the plaintiff, and of defendant's expert witness, and the book of instructions for operating double-heading trains is, that a front engine cannot stop a train with a service application of its air, if the cut out cock is cut in on the second engine; and, as defendant's head engineer Patrick testified that he did stop the train with a service application of the air, then this is conclusive proof that plaintiff's cut out cock was not cut in at the time of the accident. (8) The evidence of plaintiff is that he set his engine brakes when he got off the engine, and the evidence of the conductor is that in thirty seconds after plaintiff got off the engine, he looked at the gauge on plaintiff's engine and both hands were together. As the only thing that could cause these two hands to be together would be the setting of the independent (engine) brakes, according to plaintiff's testimony and the rules of the defendant, then the train brakes must have been set when Martin got off the train and when the conductor looked at the air gauge. (9) If plaintiff's engine and train could not move unless the cut out cock was cut in, and the engine brakes released, then the fact that it did move is conclusive proof that the cut out cock was cut in, and the engine brakes released at the time the engine moved. (10) If the cut out cock on plaintiff's engine was cut out and the train brakes set when he got off, and thereafter the cut out cock was cut in and the engine brakes released, then this was done by some employee of defendant, for the evidence discloses that there were no persons about these engines or train except defendant's employees in charge of the train.
This is an action for damages for personal injury sustained by plaintiff while employed by defendant as a locomotive engineer on one of defendant's interstate freight trains running between Amory, Mississippi, and Memphis, Tennessee. A violation of the Federal Safety Appliance Act and common-law negligence are both invoked as grounds for recovery.
The casualty giving rise to this controversy occurred about seven o'clock in the morning of March 5, 1925, at Waites, Mississippi. The freight train in question was being drawn by two locomotives, or was in common parlance a double-header, and plaintiff was the engineer on the second locomotive. The freight train had taken siding at Waites to allow a passenger train to pass it, and after the passenger train had passed, and while the freight train was pulling out of the siding onto the main line, the coupling between the front locomotive and the second locomotive broke, causing the two engines to separate and the air hose connecting them to be pulled apart, thereby causing both engines and the train to stop. The broken coupling on plaintiff's engine was hanging down on the pilot in such condition that it was hazardous to proceed without first removing the broken parts. The engines stopped some three or four feet apart and plaintiff went in between them for the purpose of removing the broken parts, and while so engaged plaintiff's engine and the train of cars thereto attached moved or rolled down upon him, catching him between the pilot of his engine and the tender of the head engine, and causing the injuries for which he sues.
The entire train, consisting of two engines, thirty freight cars and a caboose, was as a unit controlled by an automatic air-brake equipment. Without attempting a technical description of this equipment, it may be said in a general way that it consisted of a brake pipe extending from the engine all the way back through the train; an air pump, or pumps, on the engine: and valves for reducing the air pressure in the pipe. The brake pipes of the several cars were connected by means of rubber hose: there was an angle cock on the end of the brake pipe of each car and the hose screwed into the angle cock: the hose between the cars was connected by means of a knuckle joint. The brakes of all cars were coupled to the main brake pipe and their application was controlled through the air pressure in that pipe. A requisite amount of air pressure released the brakes: a reduction of that caused the brakes to take hold. On each engine there was a "double-heading cock." When a train is being pulled by two engines it is the universal practice, and the rules of defendant required, that the double-heading cock on the second engine be cut out, that is, that the air pump on that engine be taken out of the operation. This in order that the automatic air brakes may be under the control of the engineer of the lead engine without interference on the part of the engineer of the second. In addition to the automatic air brakes which controlled the train as a whole, each of the engines of the train in question was equipped with an independent air brake. All of the brakes, so far as the evidence discloses, were in perfect operative condition.
The crew in charge of the train consisted of seven men. At the time the coupling between the engines broke, Patrick, Barnes and Estes — engineer, fireman and brakeman respectively — were in the cab of the head engine; plaintiff and his fireman, Perkins, were on the second engine; Gravely, the conductor, was also on that engine; and Baker, the rear brakeman, was either in the caboose or on the ground near, he having just lined the switch after the train had passed from the siding to the main line. When the coupling broke, the hose pulled apart at the knuckle joint; thereupon, the train, including both engines, came to a stop through the operation of the automatic air brakes, the engines as they came to rest being three or four feet apart. There was a slight down grade in the direction toward which the train was headed at the place where it came to a stop.
As soon as the train stopped Patrick immediately set the independent air brake on his engine, climbed down and walked back to the rear of the tender. Estes also got down and walked back: he at once closed both angle cocks — one at each end of the hose connection between the brake pipe under the tender of the first engine and the brake pipe under the second engine. Shortly afterward plaintiff got off his engine and came forward. After viewing the situation he concluded that there was but one thing to do and that was to remove the broken parts of the coupling which were hanging down over the slats of the pilot. Thereupon be walked into the open space between the two engines and began the work of removing the coupling which was still attached in part to the pilot beam of his engine. While so engaged, and after the elapse of some three or four minutes from the time he commenced the undertaking, the train suddenly rolled forward inflicting the injuries of which he complains.
All of the witnesses, including the air brake experts and the plaintiff himself, agreed that the train, under the circumstances which have been described, would not have moved forward unless the angle cock at the front of the engine was closed, the double-heading cock cut in and the independent air brake of the engine released: that the train would not have moved unless all three of these conditions concurred. Plaintiff testified that before he left his engine he set the independent air brake, and that the double-heading cock was cut out just as it had been during the entire trip. After plaintiff got down, Gravely, the conductor, and Perkins, the fireman, remained on the engine until after the accident. Each testified that he did not release the independent air brake or cut in the double-heading cock, and that he did not see the other do so. There was no one else on or about the engine in a position to do either of these things. Yet, after plaintiff had been gotten out from between the tender of one engine and the pilot of the other, Patrick climbed upon plaintiff's engine and found the double-heading cock cut in and the independent engine air brake not set.
The petition contained seven assignments of negligence, but at plaintiff's instance the cause was submitted on but two. These were as follows: (1) "Defendant failed to have the coupler plate that broke loose from the beam as aforesaid safely and securely fastened to the beam of plaintiff's engine;" (2) "an employee of this train crew, whose name is unknown to plaintiff, negligently cut the air in on plaintiff's engine while plaintiff was between the engines." The answer consisted of a general denial and pleas of contributory negligence and assumption of risk.
The jury found the issues for plaintiff and assessed his damages at $30,000. Defendant's appeal brings the case here for review.
Appellant's principal contention is that the trial court should have sustained defendant's demurrer to the evidence at the close of the case. Its insistence goes to both of the grounds of recovery on which the cause was submitted. We will therefore consider the refusal of the demurrer with respect to each, and first as to the violation of the Safety Appliance Act.
I. It may be conceded that the evidence discloses a violation of the Safety Appliance Act on the part of the Safety defendant: the engines were cars within the Appliance Act: meaning of the act; they were in use on Violation: defendant's line in moving interstate traffic: Cause of and the couplers (at least after one gave way) Injury. would not couple automatically by impact. Notwithstanding, such violation must have proximately caused or contributed to cause plaintiff's injury; otherwise, no liability flows from it.
Neither the plaintiff nor any of the crew was engaged in a coupling or uncoupling movement; they were removing a broken coupling, the use of which as a coupling had come to an end; plaintiff had no other purpose in going between the engines. The broken coupling merely furnished the occasion for plaintiff's being between the engines: it did not cause or contribute to cause the train to roll forward. The movement of the train was caused solely by the condition which obtained with respect to the brakes: if the independent air brake on the second engine had been set, or if the double-heading cock on that engine had been cut out, the train would not have moved. There was no causal connection whatever between those conditions and the broken coupling.
The facts of this case with respect to the question under consideration are very similar to those in Illinois State Trust Co. v. Railroad, 319 Mo. 608, 5 S.W.2d 368, recently decided by Division Number Two of this court. The views expressed in the preceding paragraph are in accord with the conclusions announced in that case by BLAIR. J., after an exhaustive review of decisions of the United States Supreme Court and Courts of Appeals. On the authority of that case and the cases which it cites and reviews, appellant's contention that the violation of the Safety Appliance Act was not a proximate cause of plaintiff's injury must be sustained. It follows that the submission of whether plaintiff's injuries were caused by defendant's failure to have the coupling plates safely and securely fastened to the beam of the engine, under plaintiff's Instruction 1, was error which necessitates a reversal of the judgment.
II. Appellant bases its contention that its demurrer should have been sustained as to the assignment of common-law negligence on the ground that, under the evidence, it was "a matter of speculation and conjecture as to whether the Speculation movement of the said engine and train was due to and Conjecture. acts or omission of the defendant, for which defendant would be liable, or acts or omissions of plaintiff, for which defendant would not be liable." Plaintiff testified that before leaving his engine he set the independent air brake and that at the time he left the double-heading cock which controlled the automatic air brakes was cut out. If the facts were as he testified then either Gravely or Perkins released the independent air brake and cut in the double-heading cock: they testified that they did neither. Whether the facts were as narrated by plaintiff, or whether as testified by Gravely and Perkins, was not a matter of speculation and conjecture, but one to be found by the jury according to what they considered the greater weight of the credible evidence in the case. Appellant's contention under this head is disallowed.
Other errors complained of are of such a character that they will probably not recur on another trial, and for that reason will not be considered.
The judgment of the circuit court is reversed and the cause remanded. All concur.