Austin v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 12 January 1915
• Docket Number: 4161.
• Citation: 220 F. 85
• Parties: AUSTIN v. CHICAGO, R.I. & P. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

220 F. 85

AUSTIN v. CHICAGO, R.I. & P. RY. CO.

No. 4161.

United States Court of Appeals, Eighth Circuit.

January 12, 1915

E. H Gamble, of Kansas City, Mo. (Guthrie, Gamble & Street, of Kansas City, Mo., on the brief), for the plaintiff in error.

Paul E Walker, of Topeka, Kan., for the defendant in error.

Before HOOK and CARLAND, Circuit Judges, and REED, District Judge.

REED District Judge.

At the time of his injury (May 17, 1912) the plaintiff was employed by the defendant railway company as hostler helper in its roundhouse at Eldon, a division point on its railroad in Missouri. On the day of his injury he had completed his work upon an engine, and there being nothing further to do immediately in the line of his regular employment, he and a coemploye named Beeler were directed by their foreman to help two other employes remove some scrap that had accumulated in the yard upon the railway premises, and two radiators that had been used in or near the roundhouse to a different location near the scrap bin. Following this direction he and his coemploye, Beeler, assisted two other employes in loading the scap onto a push car in use in the yards, and on top of this they placed the two radiators and pushed the car to a place near the scrap bin. The larger of the two radiators was about 16 feet long and weighed some 650 pounds. When the car reached a position near the scap bin, the plaintiff and other employes who helped handle the car lifted the larger radiator to the ground and carried it to some blocks upon which it was to be placed. There was a man at each corner of the radiator the plaintiff and Beeler being at one end, and the other two employes at the other end. In attempting to place the radiator on the blocks, Beeler negligently and without warning, it is alleged, let go of the corner of the radiator that he was carrying, and it fell to the ground with a sudden jerk or jolt, causing a serious injury to the plaintiff's back, of which he complains, and for which he seeks recovery from the railway company. The plaintiff relies for recovery upon a statute of Missouri which reads in this way:

'Every railroad corporation owning or operating a railroad in this state shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof: Provided, that it may be shown in defense that the person injured was guilty of negligence contributing as a proximate cause to produce the injury. ' Revised Statutes of Missouri (1909) Sec. 5434.

It is admitted by the defendant that plaintiff was in its employ in and about its roundhouse and yards at Eldon at the time of his injury, and was injured while assisting Beeler and other employes in carrying a radiator as alleged; but it contends that when plaintiff was injured he was not engaged in 'operating a railroad,' within the meaning of the Missouri statute above quoted, and was not therefore within its provisions, that such statute is in effect the same as the statutes of Iowa, Minnesota, and of some other states which abolish the fellow-servant rule in those states, and that the words 'operating a railroad,' as used in such statutes, have been construed by the courts of those states to mean only 'the movement of trains, cars, or engines upon a railroad track,' and that as so construed plaintiff was not when injured engaged in the work of 'operating a railroad,' or, if the statute be so construed as to include the plaintiff while doing the work in which he was injured, it violates the equal protection clause of the federal Constitution.

The statute of Iowa reads in this way:

'Every corporation operating a railway shall be liable for all damages sustained by any person, including employes of such corporation, in consequence of the neglect of the agents, or by any mismanagement of the engineers or other employes thereof, and in consequence of the wilful wrongs, whether of commission or omission, of such agents, engineers or other employes, when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding. ' Code of Iowa (1897) Sec. 2071.

This statute differs somewhat from the Missouri statute, but it is true that the Supreme Court of Iowa has construed it to mean only the movement of trains, cars, or engines upon the tracks of a railroad, and that an employe to be within its provisions must be one who is engaged in the operation of trains or cars and thus exposed to the hazards of moving trains, and in most of the cases to have been injured by such movement, and that such construction was deemed to be necessary to save the statute from violating the equality clause of the federal Constitution. But we are not now concerned immediately with the statute of Iowa or the construction placed upon it by its courts, for the Supreme Court of Missouri has construed the Missouri statute in question to be different from the Iowa statute, or the statutes of other states patterned thereafter, and such construction is controlling, unless as so construed it is repugnant to the federal Constitution. Chicago, etc., Ry. Co. v. Stahley, 62 F. 363, 11 C.C.A. 88.

In Callahan v. St. Louis, etc., Ry. Co., 170 Mo. 473 71 S.W. 208, 60 L.R.A. 249, 94 Am.St.Rep. 746, one of a section crew in the employ of the railroad company was stationed upon a street below an overhead track of the railroad to remove from the street ties that might fall thereto in the course of replacement by other members of the crew above him, and to warn persons upon the street of dangers from the falling ties, was injured by a tie negligently thrown to the ground by some of the crew above him, and for which injuries he recovered judgment against the railroad company. It was contended in that case, as it is here, that the injured employe and his fellow servant were not engaged in the work of 'operating a railroad' within the meaning of the Missouri statute, and that the injured employe was not, therefore, within its provisions. The court, after citing the statutes of Iowa and of some other states patterned thereafter, and the decisions of the courts construing them, said: 'It thus appears that everywhere, except in Iowa and Minnesota, the adjudications agree that it is not essential that the injury should have been inflicted by reason of the negligence of a fellow servant while actually engaged in running a car, but that the injured employe may recover if injured by the negligence of a fellow servant while they are engaged in doing any work for the railroad which was directly necessary for the operation of the railroad, and that even so sweeping a statute as that of Indiana was held by the Supreme Court of the United States not to be repugnant to or violative of the federal Constitution. * * * Under our statute to entitle the injured servant to recover it must be shown that he sustained his injuries 'while engaged in the work of operating such railroad, by reason of the negligence of any other agent or servant.' This is very different from the Iowa statute. Here the injured person must be injured 'while engaged in the work of operating such railroad'-- injured not necessarily by the...