Arkell v. Baltimore & O. R. Co.

• Citation: 131 S.W.2d 590
• Decision Date: 07 July 1939
• Docket Number: No. 35748.,35748.
• Court: United States State Supreme Court of Missouri
• Parties: ARKELL v. BALTIMORE & O. R. CO.

131 S.W.2d 590

ARKELL v. BALTIMORE & O. R. CO.

No. 35748.

Supreme Court of Missouri, Division No. 1.

July 7, 1939.

Motion for Rehearing Overruled September 14, 1939.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

Action by Alice M. Arkell, administratrix of the estate of James W. Arkell, deceased, against Baltimore & Ohio Railroad Company under the Federal Employers' Liability Act to recover damages for the death of James W. Arkell. Judgment for plaintiff, and defendant appeals.

Affirmed.

Kramer, Campbell, Costello & Wiechert and Fordyce, White, Mayne, Williams & Hartman, all of St. Louis, for appellant.

Chilton Atkinson, of St. Louis, and Samuel Cohen, of Chicago, Ill., for respondent.

BRADLEY, Commissioner.

Action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for the death of James W. Arkell, an employee of defendant. The verdict and judgment for $20,000 were for plaintiff and defendant appealed.

Plaintiff is the widow of the deceased employee, and administratrix of his estate, and brought the suit as such administratrix. In Indianapolis, Indiana, defendant has two railroad yards, the Moorefield yards on the west side of the city and the State street yards on the east side. These yards are 4.2 miles apart and are connected by what is called a belt line. The deceased was a yard clerk in the Moorefield yards. He went to work at 12 midnight and was off at 8 a. m. He was injured while in the yard office about 2:25 a. m. on the night of January 12, 1936, and died two days thereafter. The office of the yard clerk was a small brick structure located in the yards, and a short distance from the terminus of track No. 7, the cleanout track. Through the negligence of the foreman of a switching crew, a boxcar was backed over the terminus of track No. 7, against and into the yard office, inflicting fatal injuries upon Arkell.

Error is assigned on the refusal of a demurrer to the evidence at the close of the whole case and on an alleged excessive verdict.

The demurrer is based on the contention that the deceased employee, at the time of his injury, was not engaged in interstate transportation work or in work so closely related thereto as to be practically a part of it. All trains entering or leaving Indianapolis were interstate. Defendant's trainmaster, Clingan, testified:

"There are fourteen trains that go through Indianapolis every day, westward and eastward; seven trains enter and seven trains leave every day. We speak of east and west trains; that is the way we designate all of our train traffic. There are no other trains except east and west trains as I term them, so that the company operated fourteen trains through Indianapolis, and through that yard every day. It is a fact that each and every one of these fourteen trains, on its regular trip, entered or moved into the states of either Ohio or Illinois. We had no local train at that time that originated in Indiana and terminated in Indiana on its run without going into another state."

Clingan gave Arkell's duties as follows: "The yard clerk, Arkell's duties were * * * the listing and marking of inbound trains and cuts, off the records of waybills, required by the traffic department agent's office, and making interchange reports and wheel reports of outbound trains, or superintending the car service records. * * * When a train comes into the yard, as a rule the yard clerk has to go right out there to that train. He gets the switch list or wheel report from the conductor, and he takes that out and checks it up along the train. He examines the seals and if a seal is broken, he reports it and has it fixed. Then he marks each car for its destination, where it is to be placed or go and the train it has got to go out on. He keeps a list in his possession of the train he marked or the cut he marked, and ordinarily he watches the yard crew as they switch these cars down onto the different tracks; and enters those lines by his waybill, the way they flow. As a train comes into the yard they cannot have the train and break it up or send it on its track until he has completed that work. It should be his business to examine those incoming and outgoing trains. He makes a record of the numbers and initials of all the cars in the trains. He takes that list and takes the waybills and sees whether the conductor is right or not before he marks these cars. The conductor might be wrong. At times he would put the cards and labels on the cars. He would tack what we call a high card on the sides of cars; that is, cars that can't go through tunnels over in the east. He would place those on the side of the cars. The wheel report is turned in to the operator with his time slip. The yard clerk uses the wheel report for no purpose of marking a train. It is the switch list. The conductor gives the switch list to the yard clerk and then he starts. When a train goes out, the yard clerk prepares that wheel report. He hands it to the conductor with his bills. The conductor of the train cannot start with his train until he gets a wheel report from the yard clerk."

The work of yard clerk, Arkell, as detailed by Clingan, was interstate transportation work or work so closely related thereto as to be practically a part of such work [St. Louis, San Francisco & Texas Ry. Co. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129, Ann.Cas.1914C, 156; Sigler v. Pittsburgh & Lake Erie R. R., 127 Pa. Super. 458, 193 A. 362; Southern Ry. Co. v. Wilmouth, 154 Va. 582, 153 S.E. 874]; and it is, in effect, so conceded. But defendant contends that at the very moment of Arkell's injury he was not engaged in such work. In order to recover under the Federal Employers' Liability Act, the injured employee must, at the time of injury, be engaged in interstate transportation work or work so closely related thereto as to be practically a part of it. Shanks v. Delaware, L. & W. R. Co., 239 U.S. 556, 36 S. Ct. 188, 60 L.Ed. 436, L.R.A.1916C, 797; Chicago & N. W. R. Co. v. Bolle, 284 U.S. 74, 52 S.Ct. 59, 76 L.Ed. 173; New York, N. H. & H. Ry. Co. v. Bezue, 284 U.S. 415, 52 S.Ct. 205, 76 L.Ed. 370, 77 A.L.R. 1370; Siegel v. M., K. & T. R. Co., 342 Mo. 1130, 119 S.W.2d 376, certiorari denied 305 U.S. 654, 59 S.Ct. 249, 83 L.Ed. ____; Clevinger v. St. Louis-S. F. Ry. Co., 341 Mo. 797, 109 S.W.2d 369, certiorari denied 302 U.S. 760, 58 S.Ct. 366, 82 L.Ed. 588; Drew v. Missouri Pac. R. Co., 340 Mo. 321, 100 S.W.2d 516; Garrison v. Thompson et al., Mo.Sup., 127 S.W.2d 649.

Defendant contends that at the moment of injury, Arkell had deviated from his usual work, and this contention is based on the evidence of James R. Bettcher, a car inspector of defendant, and who was in the yard office at the time the car crashed into it, and who was also injured. A cut of 9 empties had been brought over from the State street yards, and none of these was moving interstate. They constituted "a dead cut of cars." Bettcher and another inspected this dead cut, and classified each car; put down the number, initials, etc. Example: "Initial, B. & O.; kind, H.; number, 331507; empty; OK; coal." The classification was on form 707 and, according to Bettcher, Arkell had asked the inspectors to give him the inspection information on form 707, when a cut of cars was inspected. The inspector's office was near the yard office, but in a separate building. Bettcher said that after the 9 empties were inspected, he made up form 707 and went over to give Arkell the information thereon; that when he went in, Arkell "was standing there"; that he (Bettcher) said: "Now, I have got a list of this cut that I just inspected of empties that came over from the other side of the yards and if you want it, why, I says, `I'll give it to you as it stands.' He says, `Well, I want a list of that cut', he says, and he went around and sat down at his desk and picked up a pad of paper and was getting ready to take the numbers of these cars. * * * Then is when he hollered and then when he hollered, why, the end of the building came in."

Plaintiff, in rebuttal, testified that while at the hospital before her husband's death, she saw Bettcher and Mr. Dick, both of whom were injured in the crash, and who were in the hospital, and that she asked them "how the accident occurred", and that Bettcher said: "The three of us were in there talking; Jim (deceased) was smoking and telling a joke and then bang came the crash."

The evidence of Mrs. Arkell, in rebuttal, tended to impeach Bettcher as to what Arkell was doing at the moment of injury, and the jury had the right to eliminate what Bettcher said on that issue. From Bettcher's uncontradicted evidence, it appears that it was not his duty to make a report to Arkell, and that it was not Arkell's duty to get information from form 707. If it was not the duty of Bettcher to make a report to Arkell, and it was not Arkell's duty to get information from form 707, then the inference could be drawn that, when the crash came, Arkell was not preparing to take down the information on form 707. We do not mean to imply that such deviation (if it were such) by Arkell, as claimed by Bettcher, would be fatal to recovery under the federal act. It is not necessary to rule such question and we do not.

Assuming that Arkell, at the moment of injury, was "smoking and telling a joke" (not actually at work), as Bettcher told Mrs. Arkell, according to her evidence, would such defeat recovery? In 2 Roberts on Federal Liabilities of Carriers (2d Ed.) Sec. 739, pp. 391, 392, it is said: "An employee is deemed to be in the course of his employment during the interruptions of actual service incident to the exigencies of business or of personal necessity, and while going to or from his place of work, because such activities or suspensions of activity are necessary concomitants of the employment. * * * And the orderly performance of service at times requires men to stand and wait. Many of such...