lv. Missouri, Kansas & Texas Railway Co.

BECKER, J.

— This is an action by Rose M. Brown, administratrix of the estate of Andrew G. Brown, deceased, to recover damages from the • Missouri, Kansas & Texas Railway Company for the death of the *324 said Andrew G-. Brown, an employee of the defendant company, caused by its alleged negligence.

While in charge of a locomotive engine of the defendant company, and while engaged in drawing a train in interstate commerce, one of the tank boxes on the tender of the locomotive ran hot, and said Brown, while standing on the ladder or steps leading-down from the gangway that formed the forepart of the tender, inspecting said tank box, came in contact with the stone projecting from an embankment along the said right-of-way of said railroad and ■ was knocked from his engine, inflicting injuries upon him which resulted in his death. From a verdict in favor of plaintiff in the sum of $2500, defendant appeals.

The grounds of negligence in plaintiff’s petition relied on for a recovery are in substance; first, that owing to insufficiency and lack of repair and attention on the part of the defendant, the locomotive developed a condition known as a hot box in one of the journals. Second, that while plaintiff’s decedent was making an examination of the hot box he “grasped the handrail of the engine and tender and leaned out in order to enable him to obtain a view of the side of the engine, and while so leaning out he came in contact with a stone projecting from the embankment along the right-of-way of said defendant” throwing him from the engine and so injuring him as to result in his death. Third, that the defendant permitted its right of-way, at the point where plaintiff’s decedent was injured, to be left in a dangerous and unsafe condition by reason of the wall or embankment along which the defendant’s tracks were laid at this point, being left in such close proximity to the rails as to endanger the life or limb of the servants of the defendant while in the discharge of their duties in the operation of the locomotive and train.

Defendant’s answer admitted that Brown met with injuries resulting in his death, while in its employ as an engineer, and while operating a train, and at a time when said train was rapidly moving at about forty or *325 fifty miles an hour, by the deceased coming in contact with a natural harrier or bluff located parallel to defendant’s railway tracks. The answer contained a plea of contributory negligence, and a further answer that the deceased, in the performance of his duties, had passed said barrier and bluffs while operating defendant’s locomotive as an engineer in the “day time and night time” for a period of many years next prior to the date of his injuries, and that he was familiar with the location of both defendant’s tracks and the bluff or point referred to, and ■ that with such knowledge the deceased was guilty of negligence in placing himself in a position of peril on said ladder, whereby he fully assumed the risks and dangers incident to his position. The answer also sets up the plea that the deceased violated one of the defendant’s rules advising employees that there were obstructions on the defendant’s right-of-way along its tracks that would not clear a man riding on the side of the car, by which all employees were required to take notice and protect themselves from injuries in passing such obstructions, and that the deceased was injured as a result of the violation of that rule. The reply was conventional.

' The essential facts disclosed by the evidence, adduced on behalf of the plaintiff may be stated as follows:

The deceased was 52 years old and on November 4, 1914, the day on which he met his injuries which resulted in his death, was earning from $175 to 190 per month. He was the husband of Rose M. Brown, who is the administratrix of his estate. He had been in the employ of the defendant company as an engineer for about fourteen years and for many years prior thereto had worked for the company in other capacities.

On the day in question Brown was making his run from New Franklin to St. Louis, Missouri, a distance of 188 miles, drawing one of defendant’s fast passenger trains. The locomotive assigned him for that run was what is known as a ten wheel type engine, weighing one hundred thirty-seven and one-half tons; *326 has an open cab, and the tank on the tender connected to the engine was 9 feet 7 inches in width, w;hile the gauge between defendant’s tracks was 4 feet 8-1/2 inches. The journal box of the front wheel on the left side of the tank, or fireman’s side of the engine, had on several occasions prior to the day in question been reported as running hot, and the very day before, this particular tank box having been reported as running hot, was examined and repacked, but during the trip of November 4th, the journal box again ran hot so that the deceased, when he stopped the train at Mc-Baine, connected a rubber hose to a valve in the tank and kept a small stream of Water running into the said box. This method of treating a box which is inclined .to overheat is referred to by various witnesses as the “Keeley Cure.”

There is testimony that Brown kept up the “Kee-ley Cure” from McBaine up to mile post 115, the point at which he met with his injuries. Brown examined the bor at McBaine, again at North Jefferson, and also at Mokane. The tracks of the defendant company east of Mokane run parallel with the Missouri River and close up to a series of bluffs. Some few minutes after the train had left Mokane, Brown walked from his seat in the cab to the gangway between the engine and tender, stepped down onto the steps leading from the gangway, holding the handrail of the tender in one hand and the handrail of the engine in the other, evidently for the purpose of inspecting the tank box, and while in that position lie was struck between the hips and shoulders by a projecting rock in the bluffs and knocked off the engine, meeting with injuries from which he died the following day. This occurred about nine miles east of Mokane and according to the testimony the distance or clearance from the side of the tank to the projecting rock in the bluffs, at the point where Brown was struck, was twenty to twenty-four inches:

One Blackmer, a witness for the plaintiff, testified he was one of the defendant’s engineers and had *327 charge of the engine in question on its trip the previous day, from St. Louis to New Franklin, and that it had been necessary for him to use water on the journal in the same tank box on that trip; that he had reported the box as running hot.

James E. Hayes testified for plaintiff that he was a locomotive engineer for the Missouri Pacific Bail-way Company; that he had eighteen years’ experience as such and that he had been given the assignment of engineer for pulling many of the special trains for his road, and that he was familiar with the rules as to obstructions and clearances in operating railroads; that the clearances on the Missouri Pacific, which paralleled the defendant’s road on the other side of the Missouri Biver for a distance of 85 miles, also running along at the foot of bluffs the same as the defendant’s road, were not less than five feet on its main line; that while a hot box was not necesarily dangerous if given proper attention, it is a matter that requires constant watching, and that there was only one way to watch a tank box and that was to get down on the side of the tank steps and look underneath; that the tank on engines of this type protruded out from the frame and the truck box about eighteen or twenty-two inches so that it would be necessary to get down on the steps of the tank in order to look underneath to examine the tank box; that a man making such an inspection would have to squat down,' which would project his body out toward the bluffs slightly; that you could see the end of the tank box from the cab of certain engines but it would be impossible to see the entire box; that when the box was running warm and the “Keeley Cure” had been applied, it was necessary to ■ watch it frequently in order to be sure that the water kept flowing; that frequently sediment or rust on the inside of the tank would stop up the valve leading from the tank to the hose and would stop the flow of water, which might result in the journal running red hot and cause serious trouble; that he had frequently himself made an inspection of a hot box in *328 ike same manner on the Missouri Pacific road, running along bluffs, even at forty miles per hour.

W. P. Smith, one of plaintiff’s witnesses, testified he was a railroad engineer and had some twenty-two years’ experience on the Southern Pacific, Mexican Central, Port Worth and Rio Grande, Atchison, Topeka and Santa Pe, Baltimore & Ohio and Texas Pacific; that he had examined the engine that had been driven by Brown at the time of the accident; that the tank projected about twenty inches from the truck box; that he had experience with many hot boxes; that the usual method of treatment was to apply the “Keeley Cure;” that a hot box as well as the “Keeley Cure” needed watching all the time; that the only way to watch it would be to get down onto the steps beside the tank and look at it while the engine was running, and that that was the usual and customary method of inspecting a hot box on a passenger engine when the train was in motion. He also testified that more or less scale, moss and other sediment collected in the tank and quite frequently the hose used for the “Keeley Cure” would choke up and if the water was shut off the journal might become tremendously hot and would he liable to break off, causing a wreck; that the safety of the passengers hád to be considered, and that the “Keeley Curé” should be looked at every three or four minutes. He further testified that on the roads that he had worked, the clearance would “possibly be from five to seven feet from the side of the cab.”

The conductor in charge of the train, C. R. Campbell, testified that he had observed Brown putting some oil on the box at Mokane after he had delivered his orders to him; that he had noticed that the journal in that box had been running warm and that sometimes they “ran a little water on it;” that he had seen Brown, as well as other engineers of the road, working over that box; that he had examined the spot where Brown had been knocked from the engine and found the rock projecting at that point between twenty inches to two feet from the side of the tank of the engine, *329 and that the rock was about four or five inches from the ground; that where Brown was knocked off the engine there is a curve in the tracks.

Dick Snell testified he was the - fireman on the engine with Brown on the day of the accident; that the box in question was .running hot; that at North Jefferson, Brown turned a little water on it, which was kept running up to the time Brown was knocked off the engine; that this box had been running warm for a “trip or two;” that he saw Brown get down off of his seat and cross the deck of the engine and that when he turned his head a minute later he saw Brown standing on the steps of the tank looking towards the tank box; that as he was thus standing on the steps he was knocked off by the projection from the bluffs; that the distance from the point of the bluffs which struck Brown to the outside of the tank was probably twenty inches.

There is also testimony that when Brown stopped the train at the water tank at Mokane, Brown called the attention of the roundhouse foreman to the tank box and that the roundhouse foreman took a packing iron and shoved the pácking back and put some oil into the box.

In light of the assignments of error it will not be necessary to set forth defendant’s testimony.

I.

The main point raised by appellant is that the trial court erred in refusing to give defendant’s requested peremptory instruction in the nature of a demurrer at the close of the case, it being contended that plaintiff failed to prove negligence on the part of the defendant.

To this we cannot agree. There was plaintiff’s witness, Hayes, who was permitted to testify, without objection, that he was familiar with the rules as to projections and clearances, in operating railroads and that the clearances on the Missouri Pacific, running *330 parallel with the defendant’s road on the opposite side of the Missouri River, between the bluffs and the side of the engine were not less than five feet. Also the testimony of plaintiff’s witnesses, Smith, an engineer of some twenty-two years’ experience, on such roads as the Southern Pacific, Mexican Central, Port Worth and Rio Grande, Atchison, Topeka and Santa Pe, Baltimore and Ohio and Texas Pacific, ■ in which we note the following questions and ansewers: “Are you familiar with clearances on railroads, bluff clearances and other clearances?” A. Well,, I have never taken any actual measurements of them. On the roads I have worked on, the clearances would possibly he from five to seven feet.” Q. “Prom what?” A. “Prom the side of the cab.”

That testimony when taken in connection with the further testimony of both Hayes and Smith to the effect that the proper manner of inspecting a truck box that is either running hot or is< being given the “Keeley Cure” is for the engineer to get on to the steps, om the forward end of the tender, and -look down at the box in the manner that plaintiff’s decedent concededly was doing in this case at the time he was knocked off the engine, we take it makes it a question for the jury as to whether or not the defendant was guilty of negligence in leaving the embankment or bluff along its right-of-way at the point in question so close to its tracks that there was a clearance of but twenty to twenty-four inches between the side of the tank and the bluffs. To hold otherwise would be to declare, as a matter of law, that Brown had no right, in the proper exercise of his duties, to examine the hot box in the manner used by. him while the train was in motion, which could not be done in light of Hayes’ and Smith’s testimony. While it is true that plaintiff’s testimony on these matters was directly in conflict with that of defendant’s witnesses, as to the question of the customary and usual manner of examining a hot box while the train was in motion, such testimony cannot be considered in determining whether the court *331 properly refused to direct a verdict for the defendant, as plaintiff is entitled to every reasonable inference arising from her own testimony as well as in addition to any evidence which may have been adduced by the defendant which will help make out plaintiff’s case. [Hall v. Mfg. C. & C. Co., 260 Mo. 351 , 168 S. W. 927 ; Stauffer v. Met. St. Ry. Co., 243 Mo. l. c. 316, 147 S. W. 1032 .]

In light of the testimony, therefore, that hot boxes were of not infrequent occurrence, and • that when a box began to show signs of running hot, it was the usual and customary thing to apply what has been termed the “Keeley Cure” the process by which water is taken from a valve in the tank through a small hose and discharged into the top of the hot box, and that by reason of the danger of the flow of the water through the small tube being stopped because of sediment in the bottom of the tank, it was necessary and due precaution for the safety of the passengers required that the engineer inspect and keep under observation the flow of water into the box, and see to it that it did not stop and thus permit the journal to become superheated and thereby risk the journal breaking and causing a wreck; that the only practical manner for an inspection of a hot box being subjected to the water treatment, is for the engineer to step down on the steps between the tank and the engine and look at the box, and that plaintiff was in the act of inspecting a box that was running hot, which, he was subjecting to the “Keeley Cure,” when he was knocked off by a projecting rock from a bluff that was but twenty to twenty-four inches in the clear from the side of the tank, when taken together with the further testimony that on other roads in the country the clearances between bluffs and the side of the tank was about five feet, made a case which in our judgment the trial judge properly submitted to the jury.

Defendant company is required, the same as any other employer, to use ordinary care to provide a *332 reasonably safe place to work for its employees considering the character of their work, and is liable for injuries resulting from its failure to use such care. [Cincinnati N. O. & T. P. Ry. Co. v. Hall, 243 Fed. 76 .] And railroad companies will not be held to have exercised ordinary care to provide reasonably safe conditions for their employees to do their work when they permit stand pipes, telegraph poles, fences, buildings and other structures to be maintained so close to their tracks that employees being' on the outside of their moving cars or engines, in the performance of their duties, are crushed by them. [Fish v. Ry. Co., 263 Mo. 106 , 172 S. W. 340 ; Ann. Cas. 1916B, 147; George v. Ry. Co., 225 Mo. 364 , 125 S. W. 196 ; Charlton v. Ry. Co., 200 Mo. 413 , 98 S. W. 529 ; Murphy v. Ry. Co., 115 Mo. 111 , 21 S. W. 862 .]

II.

Learned counsel for appellant urgently urges the point that Brown met with his injuries because of the “extraordinary and unusual position in which he placed himself down-, on the side of the engine near the ground as it was approaching and was passing along the curve by the bluffs. He assumed the risk of that situation.”

In view of the testimony for plaintiff that this position which Brown assumed was the usual and customary position for an engineer to take in examining a hot box on a tender that was being given the water treatment, the question of plaintiff’s contributory negligence was properly submitted to the jury. This being air action under the federal statutes, under Act of Congress of April 22, 1908, C. 149, 35 Stat. 65 (U. S. Com. St. 1916, secs. 8657-8665) contributory negligence is not a bar to recovery for injuries to a servant, but only to diminish the damages awarded by the jury in proportion to the amount of negligence attributable to the injured employee. If Brown met with his injuries, which resulted in his death, by the negligent failure of the *333 defendant to nse ordinary care to furnish him a safe place in which to work, Brown cannot be held to have assumed the risk of injury resulting from such negligence. [Williams v. Pryor (Mo. Sup.), 200 S. W. 53 ; Fish v. Ry. Co., supra.]

III.

Defendant’s rules which were introduced in evidence to the effect that all employees were notified that there were coal chutes, platforms, and other structures located on the main lines and on sidings; also structures and platforms belonging to private corporations and persons located on industrial sidings and spurs that will not clear a man riding on the side of cars, and that all employees must protect themselves from injury in passing such structures, is not sufficient to warrant a peremptory instruction to the jury in this case to find for the defendant, and we rule that under the facts in this case it was, nevertheless, a question for the jury as to whether or not the defendant was negligent in exercising ordinary care to furnish plaintiff a safe place to work. Furthermore, the rule relied upon by defendant which calls specific attention to certain coal chutes, platforms and other structures makes no mention of the fact that the bluffs anywhere along its line were so near the tracks that they would not clear a man riding on the side of a car or engine in the performance of. his duty. The employee may rightfully assume, in the absence of notices to' the contrary, that his employer has used reasonable care in furnishing him a safe place for the carrying on of his duties in the line of his employment.

IV.

Appellant contends that Hayes, an engineer on the Missouri Pacific Railroad, when .testifying as a witness for plaintiff, should not have been permitted to give his impressions of the clearances where that company’s line of railroad paralleled the defendant’s tracks on the other side of thé Missouri River.

*334 It is sufficient to dispose of this point to state that the record shows that the defendant made no objection when Hayes was on the stand for the first time and gave testimony on this point. While it is true that an objection was made when Hayes was recalled in rebuttal, this objection, however, we hold came too late. The matter having been testified to without objection in chief, the admission of the same testimony on rebuttal over objection will not he held prejudicial error. [Masonic Mut. Ben. Soc. v. Lackland, 97 Mo. 137 , 10 S. W. 895 ; McPherson v. Andes, 75 Mo. App. 204 .]

V.

One of the counsel for plaintiff, in his argument to the jury, made a statement to the effect that plaintiff could not afford to call employees of the defendant to testify as witnesses, “because they would have lost their jobs if they had,” whereupon counsel for defendant objected in the following language: “I object to that and ask that counsel be reprimanded for making that statement, that these employees would lose their jobs if they testified for the plaintiff.” Thereupon the court stated: “There is no such testimony in the record.” Counsel for plaintiff: “There is no such testimony but the fact remains that it is legitimate argument and the conduct of Mr. Snell on the stand makes it proper for me to make that statement.” Counsel for defendant: “I except to the failure of the court to sufficiently reprimand counsel for that statement.”

It will be noted that the exception to sufficiently reprimand adverts only to the first statement'of counsel for plaintiff to which, upon objection being made, the court stated: “There is no such testimony in the record.” The statement following that admonition on the part of the court was not objected to. In light of the record in this case we are unable -.to rule that the action of the court, in view of the statement of counsel for plaintiff, was such as could have prejudiced defendant in the eyes of .the jury, and therefore rule this point against appellant.

*335 VI.

Complaint is also made of the action of the trial court in refusing three instructions requested by the defendant.

We have examined each of said instructions thus refused and it sufficiently appears from what we have already stated in this opinion that, the court properly refused each- of such instructions. A reading of all the instructions in the case shows that the court gave nine instructions for the defendant, in which the learned trial judge carefully narrowed the issues in the ease to conform to the evidence, and such instructions fully and fairly covered the case.

Finding no prejudicial error in the record the judgment is affirmed.

Reynolds, P. J., and Allen, J., concur.