Aldridge v. Wabash Ry. Co.

• Decision Date: 19 June 1934
• Docket Number: 31485
• Citation: 73 S.W.2d 401,335 Mo. 588
• Parties: Thomas Aldridge v. Wabash Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

73 S.W.2d 401

335 Mo. 588

Thomas Aldridge v. Wabash Railway Company, a Corporation, Appellant

No. 31485

Supreme Court of Missouri

June 19, 1934

Respondent's Motion for Rehearing Overruled June 19 1934.

Respondent's Motion to Transfer to Banc Overruled June 19, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Fred J Hoffmeister, Judge; Opinion filed at September Term 1933, December 20, 1933; motion for rehearing filed; motion overruled June 19, 1934; motion to transfer to Court en Banc filed; motion overruled at May Term, June 19, 1934.

Reversed.

Homer Hall and Woodward & Evans for appellant.

Plaintiff was not entitled to recover under the Federal Employers' Liability Act for the reason that at the time he was engaged in unloading the car of ties, belonging to defendant and in its own yards, he was not engaged in interstate transportation or work so closely related thereto as to become practically a part thereof. Act 1908, chap. 149, sec. 1, 35 Stat. 65, U.S. Code, Title 45, chap. 2, sec. 51; Railroad Co. v. Harrington, 241 U.S. 177, 60 L.Ed. 941, 36 S.Ct. 517; Lehigh Valley Railroad Co. v. Barlow, 244 U.S. 183, 61 L.Ed. 1070, 37 S.Ct. 515; Cruse v. Ry. Co., 133 Kan. 340, 244 P. 624; Pierson v. Railroad Co., 83 N. J. L. 661, 85 A. 233; Railroad Co. v. Maxwell, 117 Miss. 62, 77 So. 905; Sailor v. Ry. Co., 322 Mo. 396, 18 S.W.2d 82; Fenstermacher v. Ry. Co., 309 Mo. 475, 274 S.W. 718; Hensley v. Ry. Co., 226 N.W. 421; Diamond Rubber Co. v. Wernicke, 166 Mo.App. 128, 148 S.W. 160.

N. Murry Edwards and Robert A. Harris for respondent.

(1) The court did not err in refusing and overruling defendant's motion at the close of plaintiff's case and at the close of all the evidence which it now claims was a demurrer to the evidence. This motion, or so-called demurrer to the evidence, reads as follows: "The defendant, at the close of the whole case, moves the court to instruct the jury that, under the law and evidence, plaintiff is not entitled to recover and the verdict must be for the defendant." (a) It was not the duty of the trial court to modify defendant's so-called demurrer to the evidence as requested and correct the errors therein, and it cannot be convicted of error for not doing so. Huhn v. Ruprecht, 2 S.W.2d 763. (b) There was no duty upon the trial court to prepare and give instructions on behalf of defendant, and it cannot be convicted of error for not having done so. Traynor v. Wells, 273 S.W. 1103; Barnett v. Sweringen, 77 Mo.App. 75; Chicago, M. & St. P. Ry. Co. v. Randolph Town Site Co., 103 Mo. 468; Nolan v. Johns, 126 Mo. 166. (c) Instructions must be written. R. S. 1929, sec. 967. (2) The court did not err in submitting the question of defendant's liability to the plaintiff under the Federal Employers' Liability Act to the jury, because the evidence showed that plaintiff was injured while helping unload a carload of railroad ties which had been shipped from the Kettle River Tie Co., at Madison, Illinois, to the defendant at the St. Louis Avenue railroad yards. The unloading of the interstate shipment of ties by plaintiff was so closely related to the interstate transportation of the ties as to be practically a part of it, and the interstate commerce feature did not end until after the ties were delivered and unloaded. 2 Roberts' Fed. Liab. of Carriers, (2 Ed.) 1435, sec. 747; Covington Stock Yards v. Keith, 139 U.S. 136, 11 S.Ct. 463; Railroad Co. v. Burtch, 263 U.S. 544, 44 S.Ct. 166; Jonas v. Railroad Co., 48 S.W.2d 124; Swain v. Terminal Railroad Assn., 291 S.W. 166; Farmers Bank & Trust Co. v. Railroad Co., 25 F.2d 30; Reed v. Dickinson, 184 Iowa 1363. (3) At the time plaintiff was injured he was unloading ties which were ordered to be and were used in the repair and construction of defendant's roadbed, switches and tracks in its general switching yards which were connected to the main line, over which defendant transported intra and interstate commerce. Therefore, plaintiff was engaged in interstate commerce, and the court did not err in submitting this question to the jury. Carter v. Railroad Co., 307 Mo. 595; Erie Railroad Co. v. Szary, 253 U.S. 86; Kansas City So. Ry. Co. v. Martin, 262 F. 241; Hardwick v. Railroad Co., 181 Mo.App. 161; Dowell v. Ry. Co., 190 S.W. 939; Manes v. Railroad Co., 220 S.W. 14; Erie Railroad Co. v. Collins, 259 F. 172. (4) The rule that the interstate transportation is not ended until the shipment has been delivered to consignee and unloaded is not altered by the fact that the carrier is consignee and consignor. Pub. Utilities Comm. v. Landon, 249 U.S. 245; Chic. R. I. Co. v. Wright, 239 U.S. 550; Jonas v. Ry. Co., 48 S.W.2d 124; Swain v. Terminal Railroad Assn., 291 S.W. 166; Railroad v. Zachary, 232 U.S. 259; Kepner v. Ry. Co., 322 Mo. 299, 15 S.W.2d 825.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Defendant railway company appeals from a judgment of the Circuit Court, City of St. Louis, in the sum of $ 10,000. Plaintiff sued for damages for personal injuries under the Federal Employers' Liability Act (Sec. 51, Chap. 2, Title 45, Railroads, U.S. Code Annotated). Defendant denies that that act is applicable to this case.

Plaintiff alleged and gave testimony tending to prove that, while he was employed as a section hand by defendant and, with others was unloading creosoted ties, his fellow servants permitted a tie to strike the side of the car. The result was a splash of creosote into his eyes and consequent loss of sight which was about total in one eye. Defendant not only denied that plaintiff at the time was engaged in interstate commerce, but it also pleaded contributory negligence and assumption of risk. In addition it offered evidence tending to prove that the condition of plaintiff's eye was due to disease and not to injury. But the only question for decision upon this appeal is whether there was evidence to bring the case within the purview of the Federal Employers' Liability Act.

Plaintiff testified that he was hired as a section hand by J. W. Tidwell, one of defendant's section foremen. Plaintiff began work in defendant's St. Louis Avenue yards, near the Mississippi River in St. Louis, on July 25, 1929, and early that morning he assisted in cleaning up scrap and other material. About nine o'clock that morning a car of creosoted ties was spotted on track 14, where it ended at North Market Street. This track ran north and south and at right angles to North Market Street, which was an east and west highway. Unloading of the ties was commenced shortly after the car was spotted. The car was a high-sided coal car. Four men, two at each end, took hold of each tie, and to a rhythm of orders "pick up," "head high" and "throw" intoned by a straw boss, they lifted a tie, carried it to the side of the car, raised it to the level of their heads and threw it overboard. During one of these operations and on July 26, the second day of plaintiff's employment, the men on the opposite end of a tie from plaintiff failed to throw their end of the tie high enough to clear the side of the car. Accordingly the tie struck on the top and thus caused creosote to splash back and injure his eyes.

I. Plaintiff rests the liability of defendant under the Federal Act upon two grounds. The first of these is that the shipment of ties which plaintiff was helping to unload had come from Madison, Illinois, to St. Louis, Missouri, that the interstate transportation was not ended until the car was unloaded and that the unloading of the shipment was so closely related to the interstate transportation of the ties as to be practically a part of it. That Madison, Illinois, was the point of origin of the ties was proved by record evidence which defendant furnished to plaintiff. A shipping order showed that defendant Wabash Railway Company, on July 18, 1929, shipped from Madison, Illinois, Wabash car No. 8646, which was the car which plaintiff was helping to unload when injured. This car was loaded with 496 creosoted ties, and was consigned to Wabash Railway Company, c/o Lloyd Brune, St. Louis Avenue, St. Louis, Missouri. The shipping order was stamped: "Received July 19, 1929, Wabash Railway Co." A cross-tie inspection report contained the same data as the shipping order except the stamp of date of arrival of car No. 8646. Appended to the report was a printed instruction to unload promptly upon arrival, and beneath this was a signed statement that the car was unloaded at St. Louis Avenue station on July 27, 1929. A switching ticket disclosed that the car in question was switched to the Wabash Railway Company, c/o L. Brune, at St. Louis Avenue and was there received on July 19, 1929.

The record establishes beyond dispute that the St. Louis Avenue yards consisted of twenty-three side tracks, connected by means of a lead track with a main track of defendant running between Franklin Avenue in St. Louis, Missouri, and Ferguson Missouri. Car No. 8646 was one of six or seven cars of creosoted ties which were shipped to the St. Louis Avenue yard at the same time. J. W. Tidwell, defendant's section foreman at the time of the accident, had jurisdiction of tracks between Branch Street and Franklin Avenue. The St. Louis yards were included in this section. His reports revealed that on the days that plaintiff worked under him, Tidwell had his men variously employed at walking track, tending switch lights, cleaning alleys, wheeling rock, removing an old tool house and unloading ties. Tidwell was notified, by whom it does not appear, that the cars of ties were in the yard. He had other work to do, particularly to move the tool house, and hence he did not order a car of ties spotted on track 14 at North Market Street until the night of July 25. According to his records, the...