Brock v. Chicago, Rock Island & Pacific Railway Co.

• Citation: 266 S.W. 691,305 Mo. 502
• Decision Date: 25 November 1924
• Docket Number: 23852
• Parties: LESTER BROCK v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

266 S.W. 691

305 Mo. 502

LESTER BROCK v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 23852

Supreme Court of Missouri

November 25, 1924

Appeal from Clinton Circuit Court; Hon. A. M. Tibbels Judge.

Affirmed (upon condition).

Luther Burns and John E. Dolman for appellant.

(1) The court erred in refusing to instruct the jury to find for the defendant as requested, for the reason that in going for a bucket of water with which to prepare himself for his meal at the time of the injury complained of, the plaintiff was not engaged in performing any duty owing the defendant, nor any work within the scope of his duties, nor was he engaged in interstate transportation or in work so closely related to it as to be practically a part of it. Industrial Acc. Comm v. Davis, 259 U.S. 182, 66 L.Ed. 888; Shanks v Delaware Ry., 239 U.S. 556, 60 L.Ed. 436; C., B. & Q. Ry. Co. v. Harrington, 241 U.S. 177, 60 L.Ed. 941; Southern Pac. Co. v. Industrial Accident Comm., 251 U.S. 259, 64 L.Ed. 258; Pederson v. Delaware Ry., 229 U.S. 146; New York Central Ry. v. White, 243 U.S. 188, 61 L.Ed. 667; Bishop v. Delano, 265 F. 263, 254 U.S. 632, 65 L.Ed. 41; I. C. Ry. Co. v. Behrens, 233 U.S. 473; N. Y. Cent. Ry. v. Carr, 238 U.S. 260, 59 L.Ed. 1288; Erie Ry. Co. v. Welsh, 242 U.S. 303, 61 L.Ed. 319. Plaintiff went for water for his own individual purposes, and therefore cannot recover. Padgett v. Seaboard Air Line, 236 U.S. 668, 58 L.Ed. 777. Conceding that plaintiff was employed in interstate commerce when engaged in setting telegraph poles, he was not engaged within the scope of those duties or in any work incidental thereto when injured. Elliott v. Payne, 239 S.W. 851; Barry v. Hannibal Ry. Co., 98 Mo. 70; Williams v. Schaff, 222 S.W. 412, 416; Pelloco v. Railway, 190 N.Y.S. 867; Rigley v. Wabash Ry., 204 S.W. 737; Marshall v. U. Ry. Co., 184 S.W. 159; Burnstead v. Mo. Pac. Ry. Co., 99 Kan. 589; Miller v. Ry. Co., 180 Mo.App. 371; Bishop v. Delano, 265 F. 263. And, if he has any cause of action, it is under the Kansas Workmen's Compensation Act, which this court has no authority to enforce. Osagera v. Schaff, 240 S.W. 124; Mitchell v. Smelting Co., 215 S.W. 506. (2) The court erred in refusing to instruct the jury that there was no duty resting upon defendant to look out for the lineman upon its tracks, including plaintiff. There being no evidence that plaintiff was actually seen by defendant's servants in time to stop the car in question before striking him, plaintiff voluntarily assumed the risk of being struck and injured and cannot recover. Eashall v. Ry. Co., 249 Mo. 509; Gabal v. Ry. Co., 251 Mo. 257; Tuttle v. Detroit Ry. Co., 122 U.S. 194, 30 L.Ed. 1114; Northern Pac. Ry. v. Hambly, 154 U.S. 349, 357. (3) The verdict of the jury is so grossly excessive as to conclusively show it to be the result of passion and prejudice and not the result of a fair consideration of the evidence. Justice therefore demands another trial on that issue before a fair and impartial jury. Harper v. Railroad Co., 186 Mo.App. 296; Partello v. Railroad, 217 Mo. 645; Gibney v. Transit Co., 204 Mo. 704.

R. H. Musser, Platt Hubbell and George H. Hubbell for respondent.

(1) Respondent and the appellant were engaged in interstate commerce at the time of the injury -- repairing a telegraph line which had been used, and which was then and there in use in moving interstate trains is interstate commerce within the meaning of the act of Congress. Coal & Coke Ry. Co. v. Deal, 231 F. 604, 145 C. C. A. 490, 215 F. 285, 232 F. 1020, 245 U.S. 681, 62 L.Ed. 544; Yarde v. Hines, 209 Mo.App. 547; Crecelius v. Milwaukee Ry. Co., 284 Mo. 26, 274 Mo. 671; Williams v. Schaff, 282 Mo. 497; 1 Rob. Fed. Lia. Carr, sec. 494; So. Pac. Co. v. Indust. Acc. Com., 251 U.S. 259; Ross v. Sheldon, 176 Iowa 618; Collins v. Mich. Cent. Railroad Co., 193 Mich. 303; Brier v. Ry. Co., 183 Iowa 212; Erie Railroad Co. v. Collins, 253 U.S. 77; North Carolina Railroad Co. v. Zachary, 232 U.S. 248; Behncke v. Min. Co., 189 Mo.App. 639; Paras v. Railroad Co., 183 Iowa 1212; Louisville Railroad Co. v. Walker's Admr., 162 Ky. 209; Erie Railroad Co. v. Szary, 253 U.S. 86; Thomas v. Wis. Cent. Ry. Co., 108 Minn. 485; Manchester St. Ry. Co. v. Barrett, 265 Fed 557; Clem v. Chalmers Motor Co., 178 Mich. 340; P. B. & W. R. Co. v. Smith, 250 U.S. 101, 63 L.Ed. 869; So. Ry. Co. v. McGuin, 240 F. 649, 61 L.Ed. 1373, 244 U.S. 654; Director General v. Bennett, 268 F. 767; Knorr v. Cent. Railroad, 268 Pa. 179, 254 U.S. 644. (2) Appellant's own evidence showed a legal duty to the respondent -- that legal duty was violated by overt acts of negligence -- there was no assumption of risk in the case -- respondent's instruction number four was more favorable to appellant than the law permits -- appellant only submitted the theory of assumption of risk as predicated in appellant's instruction numbered six without any evidence to support that theory. Chesapeake & O. Railroad Co. v. DeAtley, 241 U.S. 310; Yazoo & Miss. Valley Ry. Co. v. Wright, 235 U.S. 376; Chesapeake & O. Railroad Co. v. Proffitt, 241 U.S. 462; Erie Railroad Co. v. Purucker, 244 U.S. 320, 61 L.Ed. 1166; McGovern v. Phil. & Railroad Co., 235 U.S. 389; C. R. I. & P. Ry. Co. v. Ward, 252 U.S. 18; So. Ry. Co. v. McGuin, 240 F. 649, 244 U.S. 654, 61 L.Ed. 1373; Adams v. Railroad Co., 287 Mo. 535; Pryor v. Williams, 254 U.S. 43. (3) The verdict of twenty thousand dollars in this case is not excessive. Hughes v. Savings Assn., 115 N.Y.S. 320; 17 C. J. 1096, 1097, 1098, 1101, 1114; Smith v. Whittier, 95 Cal. 279; Sabine Railroad Co. v. Ewing, 7 Tex. Civ. App. 8; International Railroad Co. v. Brazzil, 78 Tex. 314; Dickinson v. McBride, 127 Ark. 555; Carr v. Am. Loco. Co., 23 Ann. Cas. 1912 B, 131, 31 R. I. 234; Ruck v. Brewery Co., 26 Ann. Cas. 1913 A, 1373, 148 Wis. 222; St. Louis Railroad Co. v. Webster, 27 Ann. Cas. 1913 B, 141, 99 Ark. 265.

Lindsay, C. Small, C., concurs.

OPINION

LINDSAY

This suit was brought by plaintiff under the Federal Employers' Liability Act, to recover damages for injuries sustained by him through being struck by a motor car operated by a section crew of the defendant, and alleged to have been operated negligently. The injury occurred on August 12, 1920, at Maple Hill, in Kansas. The plaintiff was and is a resident of Missouri. At that time the defendant was engaged in repairing the telegraph line located upon the right of way of its railroad running through Maple Hill. Along with the telegraph wires, fifteen in all, composing said line, there was a telephone wire. Both the telephone wire, and the telegraph wires were used by the defendant in controlling the operation of its freight and passenger trains in interstate, as well as intrastate traffic. The repair work was carried on in such a manner as not to interrupt the cotemporaneous use of the wires in the control of train operations.

The plaintiff had been in the employment of defendant for about three weeks. His duties consisted in digging holes, and in assisting in the setting or re-setting of poles, the adjustment of cross-arms, and the like work. The work of repairing the line was in charge of a foreman, and there were, in all, about sixteen men who constituted what was designated as the telegraph-repair crew, and were engaged in this repair work. These men slept and took their meals in cars provided by the defendant. The tracks of the defendant at Maple Hill run almost east and west. The bunk cars, and other cars, appurtenant to the uses of the telegraph-repair crew, stood upon the southermost track, spoken of as the stock-yards track. Near, and north of this, was a passing track. North of this passing or middle track was the main-line track. The depot is north of these tracks, and was about ninety or one-hundred feet east of the bunk car used by plaintiff and others of the crew to which he belonged. At a point about one-hundred-fifty feet west of where the bunk cars stood, a public road crossed the railroad tracks. There were five bunk cars, and eight other cars, including a water-tank car, and cars for tools and food supplies for this crew of men. All of the town of Maple Hill was north of the tracks; none of it to the south. The plaintiff worked eight hours a day at seventy-five cents an hour. His work began at eight o'clock in the forenoon, continued until noon, was resumed at one o'clock, and ended at five o'clock in the afternoon. His injuries were received during the noon hour. He had returned from his work, to the bunk car occupied by him and five other men, for the purpose of eating his noonday meal in the car adjacent, provided by the defendant for that purpose. Finding that the water in his car had been used up by the others, the plaintiff took a bucket and started to bring water from a well, which was north of the tracks of defendant, and in a northwest direction from his bunk car. As he descended from the bunk car he was facing south, his back toward the middle or passing track. It was shown that the door in use was on the north side of the car; that there were no steps leading down, but there was a hand-hold at the side of the door, and, about thirty inches below the base of the opening, there was an iron stirrup as a support for the foot in ascending or descending. At about this time a freight train was approaching rapidly, east-bound, upon the main-line track. The plaintiff, on reaching the ground, turned westward a few steps, and stepped upon the middle or passing track, facing northwest, and pausing to look and await the passing of the freight train he was struck by a Mudge motor car operated by the section crew of defendant, which was moving west upon the middle or passing track.

The testimony of the motorman of the Mudge motor car was that he saw the...