Leet v. Atchison, Topeka & Santa Fe Railway Co.

SPENCE, J. Plaintiff brought this action under the provisions of the Federal Employers’ Liability Act (45 U.S.C.A., § 51) to recover damages for the death of Frederick Waits, deceased. Following a trial by jury, judgment was entered in favor of plaintiff in the sum of $25,000 and from said judgment, defendant appeals.

The contentions of defendant on this appeal are first, that there was no substantial evidence showing any negligence on the part of defendant and second, that even assuming that the evidence was sufficient to show negligence on the part of the defendant, there was no evidence showing that such negligence was a proximate cause of the death of the deceased.

Deceased, who was employed as the head brakeman on one of defendant’s westbound freight trains, was killed while standing on the eastbound track in the vicinity of said freight train at a refueling station in New Mexico known as Marmon. He was struck by defendant’s passenger train known as “The Chief” which was proceeding along the eastbound track and was passing the standing freight train at a speed admittedly in excess of 70 miles per hour. It is conceded by defendant that the 1939 amendment to the Federal Employers’ Liability Act (53 Stats. 1404, ch. 685, 45 U.S.C.A., § 54) completely abolished the carrier’s defense of assumption of risk by the employee (see Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54, 67 [63 S.Ct. 444, 87 L.Ed. 610, 617, 143 A.L.R. 967]), and that long prior to 1939, the defense of contributory negligence had been eliminated as a complete defense and had [415]remained available to a defendant carrier only as a means of diminishing damages upon the theory of comparative negligence. (45 U.S.C.A., § 53.)

The complaint was in two counts. The first count charged negligence on the part of defendant in the operation of the passenger train which struck deceased. The second count charged negligence on the part of defendant in failing to provide deceased with a reasonably safe place to work. The pleadings and evidence indicate that it was plaintiff’s theory on the second count that defendant was negligent because it had permitted “a large pile of hot cinders from engines of defendant to be and to remain adjacent to said eastbound track” thereby preventing deceased from performing his work at any place other than upon the eastbound track and thereby preventing deceased from escaping in the direction of the cinderpile from the danger of an approaching train.