Allen v. Railway Company

• Decision Date: 22 October 1932
• Docket Number: No. 30101.,30101.
• Citation: 53 S.W.2d 884
• Parties: ELSIE ALLEN, Administratrix of the Estate of ELMER A. ALLEN, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

53 S.W.2d 884

ELSIE ALLEN, Administratrix of the Estate of ELMER A. ALLEN, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.

No. 30101.

Supreme Court of Missouri, Division One.

October 22, 1932.

Appeal from Lawrence Circuit Court. — Hon. Emery E. Smith, Judge.

REVERSED.

E.T. Miller and Mann, Mann & Miller for appellant.

(1) (a) Before an employee may be held to be engaged in interstate commerce within the meaning of the Federal Employers' Liability Act, his work at the time of his injury must be such as to cause him to be engaged in interstate transportation. In other words, his employment must be directly connected with the transportation of persons or things in interstate commerce. Shanks v. Railroad Co., 239 U.S. 556, 60 L. Ed. 436; Railroad Co. v. Bolle, 52 Sup. Ct. Rep. 59. (b) Deceased's work bore no relation to interstate transportation. No cause of action therefor exists under the Federal Employers' Liability Act, and the separate demurrers to each count of the petition, offered at the close of all the evidence, should, for that reason, have been sustained. Railroad Co. v. Bolle, 52 Sup. Ct. Rep. 59; Railroad Co. v. Yurkonis, 238 U.S. 439, 59 L. Ed. 1397; Railroad Co. v. Harrington, 241 U.S. 177, 60 L. Ed. 941. This case expressly overrules Erie Railroad Co. v. Collins, 253 U.S. 77; Erie Railroad Co. v. Szary, 253 U.S. 86; Railroad Co. v. Barlow, 244 U.S. 183, 61 L. Ed. 1070; Shanks v. Railroad Co., 239 U.S. 556, 60 L. Ed. 436; Railroad Co. v. Nash, 242 U.S. 619, 61 L. Ed. 531; (reversing Nash v. Railroad, 154 N.W. 957, 155 N.W. 1102; Hallstein v. Railroad Co., 30 Fed. (2d) 594; Railroad Co. v. O'Dell, 252 Fed. 540; Kelly v. Railroad Co., 238 Fed. 95, certiorari denied, 243 U.S. 646, 61 L. Ed. 945; Gallagher v. Railroad Co., 167 N.Y. Supp. 480, affirmed, 119 N.E. 1044. Certiorari denied, 248 U.S. 559, 63 L. Ed. 421; Phillips v. Railroad Co., 177 Minn. 233, 225 N.W. 106, certiorari denied, 280 U.S. 587, 74 L. Ed. 635; Kozimko v. Hines, 268 Fed. 507; Railroad Co. v. Pitchford, 253 Fed. 736; Spry v. Railroad Co., 50 Fed. (2d) 598; Fenstermacher v. Railroad Co., 309 Mo. 475, 274 S.W. 719; Boles v. Hines, 226 S.W. 274; Dunn v. Railroad Co., 190 S.W. 966; Vollmers v. Railroad Co., 119 N.E. 1084, reversing 167 N.Y. Supp. 426; Tepper v. Railroad Co., 144 N.E. 668; Heed v. Industrial Commission, 122 N.E. 801; Castonguay v. Railroad Co., 100 Atl. (Vt.) 908. (2) The possibility that the sewer on which deceased was working might eventually, if not cleaned out become so completely stopped as to interfere with the free passage of water from the boilers and thereby interfere with their function in generating and supplying steam does not give interstate character to the employment of deceased at the time of his injury. Hallstein v. Railroad Co., 30 Fed (2d) 595; Erie Railroad Co. v. Welsh, 242 U.S. 303, 61 L. Ed. 324; Onley v. Railroad Co., 36 Fed. (2d) 705; Railroad Co. v. Hughes, 278 U.S. 496, 73 L. Ed. 473; Railroad Co. v. Toops, 281 U.S. 349, 74 L. Ed. 896; Railroad Co. v. Ambrose, 280 U.S. 486, 74 L. Ed. 562; Martin v. Railroad Co., 258 S.W. 1027; Myers v. Railroad Co., 296 Mo. 267, 246 S.W. 263.

Sizer & Gardner for respondent.

(1) Deceased's work was interstate because the stationary boiler plant and the sewer which served as a drainage thereof were instrumentalities of interstate commerce and the work of cleaning out said sewer facilitated interstate commerce in providing a system whereby the interstate coaches were cleaned and heated at defendant's terminal. Spaw v. K.C. Terminal, 198 Mo. App. 557; Railroad v. Puckett, 244 U.S. 571, 61 L. Ed. 1321; Pederson v. Railroad, 229 U.S. 146, 57 L. Ed. 1127; Railroad v. Smith, 250 U.S. 101, 63 L. Ed. 869; R.I. v. Debord, 192 S.W. 767; Hudgens v. Railroad, 2 S.W. (2d) 960; Railroad v. Brumfield's Admr., 203 S.W. 541; Probus v. I.C., 203 S.W. 863; Morrison v. Railroad, 175 Pac. 326; Newkirk v. Pryor, 182 S.W. 682; Railroad v. DiDonato, 256 U.S. 327, 65 L. Ed. 955; Grybowski v. Railroad, 95 Atl. 764; Railroad v. Clarke, 185 S.W. 94; Moran v. Railroad, 145 Atl. 567; Scelfro v. Railroad, 209 N.Y. Supp. 455; Railroad v. Blankenship, 74 So. 960; Brown's Admr. v. Railroad, 12 Fed. (2d) 39; Railroad v. Collins, 253 U.S. 78, 64 L. Ed. 790; Railroad v. Szary, 253 U.S. 86, 64 L. Ed. 794; Clemence v. Railroad, 11 Fed. (2d) 913; Roush v. B. & O., 243 Fed. 12; Grusezewsky v. Dir. Genl., 113 Atl. 160; Phillips v. Railroad, 216 N.W. 940; Guida v. Railroad, 121 N.E. 871; Kepner v. Railroad, 15 S.W. (2d) 829. (2) Instruction 4 was proper and the evidence warranted the submission of deceased's interstate employment, and warranted the jury's finding that he was so engaged. (3) The testimony of witness Biggs was competent and the credibility thereof was for the jury. His testimony was not prejudicial to defendant. (4) The verdict for $5,000 on the second count of the petition is not excessive. Railroad v. Craft, 171 S.W. 1185, affirmed 237 U.S. 648, 59 L. Ed. 1160.

FERGUSON, C.

Elmer A. Allen, an employee of the defendant Railway Company, was killed while engaged, in the course of his employment, in doing certain repair work at defendant's railroad yards in Kansas City, Missouri. The widow, Elsie Allen, as administratrix brought this action, under the Federal Employers' Liability Act, to recover damages for Allen's death, alleged to have been caused by the negligence of defendant. The defendant operated a railroad business for the transportation of passengers and freight in interstate and intrastate commerce. At the conclusion of all the evidence the Railway Company moved for a directed verdict upon the ground that under the facts Allen was not, at the time he received the injury which caused his death, engaged in interstate commerce within the meaning of the Federal Employers' Liability Act. The trial court overruled the motion and the verdict and judgment, in an amount giving this court jurisdiction of the appeal, was for plaintiff. The Railway Company appealed.

It is conceded that if the facts make out a cause of action under the Federal Employers' Liability Act the evidence is sufficient to take the case to the jury on the question of defendant's negligence. Appellant contends, however, that plaintiff has no cause of action under the Federal Employers' Liability Act but redress or compensation for Allen's death must be had under the Missouri Workmen's Compensation Act. An understanding of the facts is necessary to a determination of the question. Appellant maintains extensive terminal yards in Kansas City wherein are located a roundhouse, the office building of the superintendent of terminals, a carpenter shop, boiler shop, power house, mill shop and other buildings necessary to the operation of a large railroad terminal. There were also, within the yards, numerous tracks upon which passenger coaches used in both interstate and intrastate service and Pullman cars used in interstate service were stored when trains having the terminus of their run at Kansas City arrived there. These coaches and cars were cleaned and made ready for service and then placed in passenger trains made up for runs out of Kansas City. Locomotives were kept in the roundhouse, or in these yards, between trips on the road. Repairs of varied character were made upon engines and cars while same were in these terminal yards. To take care of sewage appellant had constructed a private sewer main of vitrified tile, twenty-four inches in diameter and some twenty-four hundred feet in length. north and south, with lateral lines to the several buildings. This sewer connected at the south end of the yards with the city sewer system. The terminal yard sewer was approximately eleven feet below the surface of the ground. It served the building used as offices for the superintendent of terminals, where a clerical force was maintained, the offices of the yard master, store room, carpenter shop, mill shop, roundhouse, restaurant and other buildings. In the power house were two large stationary boilers by means of which steam was generated and supplied, by a system of pipes, to the yards and buildings. In this manner the buildings were heated. The steam was also piped to the various tracks throughout the yards upon which coaches were stored. Trains with Kansas City as a terminus would be broken up on arrival there and the coaches placed upon these tracks. During cold weather the coaches were heated, while standing on the storage tracks, by steam piped from the power house but when a train was made up to go out of the yards the coaches were disconnected from the pipe carrying steam from the power house and were thereafter heated by steam from the locomotive. When an engine came into the terminal yards at the end of its regular run the fire was extinguished. In firing a locomotive engine preparatory to sending it out of the yards it was necessary to create a draft in addition to that produced by the smoke stack. When the fire was started and until steam in the boiler of the locomotive attained a pressure of 30 or 35 pounds, after which time the engine created its own draft, a draft was obtained by forcing steam, generated in the power house, into the front of the engine. After sufficient steam was generated in the boiler of the locomotive that steam was used to create the draft and keep the fire burning and the connection with the pipes carrying steam from the power house was then discontinued. Steam generated by means of the two boilers at the power house was not used to propel the locomotives or any other machinery. The boilers in the power house were in continuous service and were in charge of three stationary engineers, each working an eight hour shift. In order to keep the boilers free of sediment it was customary, two to three times during each eight hour shift, for the engineer to open a blow-off valve, forcing steam and scalding water out of the boilers which was carried off through a six inch pipe leading...