Brewer v. Missouri Pac. R. Co.

• Decision Date: 05 February 1924
• Docket Number: No. 18053.,18053.
• Citation: 259 S.W. 825
• Parties: BREWER v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

259 S.W. 825

BREWER v. MISSOURI PAC. R. CO.

No. 18053.

St. Louis Court of Appeals, Missouri.

February 5, 1924.

Rehearing Denied March 18, 1924.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Suit by J. G. Brewer against the Missouri Pacific Railroad Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

James F. Green, H. H. Larimore, and M. U. Hayden, all of St. Louis, for appellant.

Rassieur & Long and W. H. Douglass, all of St. Louis, for respondent.

BRUERE, C.

This suit is brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) to recover damages for personal injuries, alleged to have been sustained by the plaintiff, through the negligence of the servant of defendant, and while employed by the defendant. The trial resulted in a verdict and judgment for the plaintiff for $2,500, and the defendant brings the case to this court by an appeal.

The negligence charged in the petition, and upon which the cause was submitted to the jury, is, in substance, that the defendant railroad company is engaged in interstate commerce and that plaintiff was an employee of the defendant and was employed in interstate commerce at the time he was injured; that on or about the 28th day of October, 1920, plaintiff was engaged in painting block signals along the main line of defendant's railroad, and that in the performance of his duties in going from one point to another over said road, the defendant furnished him with a motor car which ran on the tracks of the defendant; that on said date plaintiff was going from Ironton southward to Piedmont on said road, and that between these towns the defendant's road passes over a hill, and that while the motor car plaintiff was riding was descending this hill, the operator threw the brakes on the motor car and checked its speed so suddenly as to cause plaintiff to fall off of the motor car, and that after plaintiff had fallen from the motor car the operator then released the brakes and permitted the motor car to run over or against plaintiff; and that plaintiff was injured in the fall from the car and when struck by the car. The petition further alleges that plaintiff's said injuries were directly caused on account of the negligence of the defendant and its employee in charge of the operation of said motor car in this, to wit:

"That the operator of the motor vehicle negligently applied the brakes in such a manner as to cause the car to stop suddenly and throw plaintiff off the motor car, and that after plaintiff had fallen off the car, the operator negligently released the brakes so as to cause the car to move forward and strike plaintiff or run over him, thereby causing plaintiff's injuries as aforesaid."

The answer is a general denial.

It appears from the evidence, adduced by the plaintiff, that, at the time of the accident and for 16 days prior thereto, plaintiff was employed by the defendant to paint block signals which were stationed every 2,500 yards along defendant's main line, running from St. Louis, Mo., down into Arkansas, and that plaintiff was engaged in said work during the entire period of his said employment.

It further appears that on the morning of the day on which the accident occurred, plaintiff and three other painters, who were also in the employ of the defendant, began the work of painting block signals along the defendant's road at Ironton, Mo., working south. In doing this work the defendant furnished the men with two motor cars, which were used by them in going to and from their places of work over said road. These motor cars were propelled by gasoline engines and ran on the tracks of the defendant.

There were two block signals between Ironton and Arcadia. The four men painted these, and then from there they proceeded to Piedmont, where plaintiff lived, to do some other work in connection with block signal work. At Arcadia plaintiff's foreman, Mr. Rummel, suggested that plaintiff change cars and ride on the motor car with Hughes, his coworker, which plaintiff did. Rummel and plaintiff's father then proceeded south towards Piedmont in one car, and plaintiff and Hughes followed in the other; the latter being pulled by the first car for about a mile to a place called Tip Top. At this place there is quite a hill or grade. After the second car reached Tip Top, the first car cut loose and went ahead and the second car started down the hill or grade. Hughes, who was operating the car, was at the rear, and plaintiff was sitting at the front, both on the same board provided for that purpose. After the car had started downhill, the car began to gain speed and to wobble and knock against the rails from one side to the other. When the car had thus proceeded for about one-half mile, Hughes slammed the brakes on so suddenly and with such force as to lock the wheels and cause the car to jump the track and throw plaintiff off the car. Hughes then released the brakes and allowed the car to run onto the plaintiff.

The above facts are uncontradicted except, perhaps, by that part of Hughes' testimony which relates to the manner in which he applied the brakes. Hughes, on behalf of the defendant, testified that the brakes were on while the car was running down the hill or grade, and that he applied them a little tighter just before the car jumped the track, but not as tight as he could have set them.

Counsel for defendant assign as error the action of the trial court in refusing to direct a verdict for the defendant at the close of all the evidence.

In support of this assignment of error it is contended that the plaintiff failed to establish: First, that the defendant was engaged in interstate commerce at the time of plaintiff's injury; second, that the plaintiff suffered an injury while he was employed in interstate commerce; and, third, that the negligence charged in the petition was the proximate cause of plaintiff's injuries.

Regarding the first contention, the evidence shows that the defendant, Missouri Pacific Railroad Company, ran from St. Louis, Mo., into the state of Arkansas. Moreover, the appellate courts of this state have held that they will take judicial notice that the Missouri Pacific Railroad Company is engaged in interstate commerce. State v. Railroad, 212 Mo. 658, loc. cit. 676, 111 S. W. 500; McIntosh v. Railroad, 182 Mo. App. 288, loc. cit. 295, 168 S. W. 821; Spaw v. Railroad, 198 Mo. App. 552, loc. cit. 556, 201 S. W. 927; Yarde v. Hines (...