Brum v. Wabash Ry. Co.

• Decision Date: 18 September 1934
• Docket Number: 30727
• Citation: 74 S.W.2d 566,335 Mo. 876
• Parties: Lemuel H. Brum v. Wabash Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

74 S.W.2d 566

335 Mo. 876

Lemuel H. Brum v. Wabash Railway Company, a Corporation, Appellant

No. 30727

Supreme Court of Missouri

September 18, 1934

Rehearing Overruled July 17, 1934.

Motion to Transfer to Banc Overruled September 18, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge; Opinion filed at May Term, 1934, June 12, 1934; motion for rehearing filed; motion overruled July 17, 1934; motion to transfer to Court en Banc filed; motion overruled at September Term, September 18, 1934.

Affirmed.

Homer Hall and Woodward & Evans for appellant.

(1) The Federal Employers' Liability Act is not applicable. The switching crew was neither making up nor breaking up an interstate train. There was nothing about the movement that was necessary or incidental to the forward movement in interstate commerce of the three interstate cars. Their presence in the drag was a mere incident. U.S. Code, Title 45, Chap. 2, Sec. 51; C. B. & Q. Railroad Co. v Harrington, 241 U.S. 177, 60 L.Ed. 941, 36 S.Ct. 517; Shanks v. Railroad Co., 239 U.S. 556, 60 L.Ed. 436, 36 S.Ct. 188; C. & E. I. Railroad Co. v. Ind. Comm., 284 U.S. 296, 76 L.Ed. 304; C. & N.W. Railroad Co. v. Bolle, 284 U.S. 74, 76 L.Ed. 173; Pope v. Railroad Co., 51 F.2d 575. (2) The test, whether plaintiff was engaged "in furtherance of the interstate commerce business of defendant," set out in Instruction 1, is erroneous. The true test is whether plaintiff at the time was engaged in interstate "transportation" or in work so closely related to it as to be practically a part of it. Pennsylvania Co. v. Donat, 239 U.S. 50, 60 L.Ed. 139; Roberts, Federal Liabilities of Carriers (2 Ed.), p. 1430; Erie Railroad Co. v. Welsh, 242 U.S. 313, 61 L.Ed. 319. (3) Instruction 1 unqualifiedly places the duty of repairing the crossing on defendant, whereas the duty to warn is the only duty where any danger to one's employee exists on another's property. Emerson v. Ry. Co., 191 Iowa 1386, 182 N.W. 376.

Mark D. Eagleton and Allen, Moser & Marsalek for respondent.

(1) The court committed no error in refusing appellant's demurrers to the evidence, and submitting the case to the jury. (a) The evidence shows that the train in connection with which respondent was working contained, among others, at least three interstate cars, and that at the time of plaintiff's injury the work in progress was the separation of the cars in the train into two trains; the "town" cars to be set out on Polar Wave track 7, and "bridge" cars on Polar Wave track 4; that, in order that this work might proceed, plaintiff was sent to line up No. 4 switch, and to flag the crossing; that the crossing was a busy one where many automobiles passed back and forth day and night; that two cars at the end of the train were kicked in upon the lead track, and that respondent was injured by said cars, while engaged in the above work. Under such circumstances respondent was engaged in interstate transportation, or work so closely related thereto as to be practically a part thereof. Stottle v. Railroad Co., 321 Mo. 1190, cert. den., 280 U.S. 589; La Lone v. Ry. Co., 316 Mo. 835; Seaboard Air Line Ry. v. Koennecke, 239 U.S. 352, 60 L.Ed. 324; L. & N. Railroad Co. v. Parker, 242 U.S. 13, 61 L.Ed. 119; St. Louis, etc., Railroad Co. v. Seale, 229 U.S. 156, 57 L.Ed. 1129; New York C. Railroad Co. v. Carr, 238 U.S. 260, 59 L.Ed. 1298; Penn. Railroad Co. v. Morrison, 3 F.2d 986; Youngstown & O. Railroad Co. v. Halverstodt, 12 F.2d 995; Sullivan v. Wabash Ry. Co., 23 F.2d 323; Reap v. Hines, 273 F. 88; Davis v. Dowling, 284 F. 670; Pittsburgh, C. C. & St. L. Ry. Co. v. Glinn, 219 F. 148; Grand Trunk W. Railroad Co. v. Reid, 42 F.2d 403; Roberson v. Ry. Co., 201 Mo.App. 672; Vaughan v. Railroad Co., 177 Mo.App. 155; Hudgins v. Railroad Co., 2 S.W.2d 958. (b) The presence of one or more interstate cars in a train impresses the entire train with interstate character. Pedersen v. Railroad Co., 229 U.S. 146, 57 L.Ed. 1125; St. Louis, etc., Railroad Co. v. Seale, 229 U.S. 155, 57 L.Ed. 1129; Penn. Railroad Co. v. Donat, 239 U.S. 50, 60 L.Ed. 139; Hester v. Railroad Co., 254 F. 787. (c) In determining whether the injured employee was or was not engaged in interstate transportation, the court considers the relation of the work he was doing to the entire movement or project in progress. Stottle v. Railroad Co., 321 Mo. 1199. (d) The question must be determined according to the facts and circumstances of the case, and where there is room for difference of opinion, the issue is one for the jury. Pennsylvania Railroad Co. v. Donat, 239 U.S. 50, 60 L.Ed. 139. (2) Defendant is estopped to contend that the case is not governed by the Federal Employers' Liability Act. At appellant's instance the court gave Instruction 2, submitting the defense of assumption of risk, as it applies to cases under the Federal Employers' Liability Act. This instruction was given on the theory that the respondent was engaged in interstate transportation when he was injured, and appellant otherwise would not have been entitled to said instruction. Having adopted and received the benefit of this theory at the trial, appellant is estopped to change front on appeal and claim that respondent was not engaged in interstate transportation. Williams v. Pryor, 272 Mo. 613; State ex rel. v. Reynolds, 200 S.W. 57; Simpson v. Wells, 292 Mo. 328; Holmes v. Braidwood, 82 Mo. 617; Ellis v. Met. St. Ry. Co., 234 Mo. 676; Chinn v. Naylor, 182 Mo. 594. (3) The instruction requires the jury to find that respondent was "engaged in handling and moving and assisting in the handling and moving of various cars destined to points and states other than the State of Missouri, . . . and that while thus engaged, if you so find," he was injured, etc. The acts above hypothesized constitute interstate transportation as a matter of law, and it was immaterial that the instruction, in connection therewith, employed the term "interstate commerce," instead of "interstate transportation." Shinn v. Railroad, 248 Mo. 180. (a) The contention that the instruction erroneously submits a failure to repair the defect in the crossing, without first requiring a finding that the crossing was on appellant's property, is unsound for several reasons: Ford v. Dickinson, 280 Mo. 224; Schleuter v. Ry. Co., 316 Mo. 1282; Clark v. Union Foundry Co., 234 Mo. 454; Devine v. Delano, 272 Ill. 166. (b) The instruction requires a finding that appellant negligently failed to warn respondent of the presence and location of the hole. The fact that the instruction required the jury to find an additional act of negligence, stated in the conjunctive in the instruction, merely imposed an unnecessary burden on the respondent, and could not have prejudiced the appellant. State ex rel. Pevely Dairy Co. v. Daues, 289 S.W. 835; Gibler v. Railroad, 129 Mo.App. 101; Troutman v. Oil Co., 224 S.W. 1016; Chambers v. Hines, 208 Mo.App. 231; West v. Duncan, 249 S.W. 128; Barker v. Lumber Co., 217 S.W. 588; Wolfe v. Payne, 294 Mo. 186; Hunt v. Railroad, 303 Mo. 128.

OPINION

Frank, J.

Action under the Federal Employers' Liability Act to recover damages for alleged personal injuries. Judgment below for plaintiff for $ 20,000, and defendant appealed.

Respondent was in the employ of appellant as a switchman. While assisting in the making of a switching movement, in what is known as appellant's Rosedale yards in the city of St. Louis, two cars kicked from a string of cars ran over him, resulting in the loss of his left leg about six inches below the hip and a severe injury to his back.

On the day in question respondent reported at the Rosedale yards for work about six o'clock in the evening. The first movement made by the switching crew was to go to the yards of the Boeckler Lumber Company, located about two miles north of Rosedale yards, and there pick up three loaded cars which were billed to points outside this State. Appellant concedes that these three cars were interstate cars, so we need not consider the evidence touching that question. After picking up these three interstate cars, they picked up cars at other places and finally returned to Rosedale yards about seventhirty o'clock that evening with a drag of thirteen or fourteen cars, including the three interstate cars. The engine was at the south end of the drag of cars pushing them northward. There were two empty intrastate coal cars on the north end of the drag. The movement which injured respondent was the kicking of the two empty coal cars from the end of the drag of cars onto another track known as Polar Wave Track No. 4. Before executing this movement, one Krause, appellant's switch foreman, told respondent to go and line up or throw the switch for No. 4 so that the two empty coal cars would go in on Polar Wave No. 4, then guard the crossing to prevent travelers from crossing the track while the two cars were being kicked over the crossing. There was a plank crossing at the place in question which was much used by automobiles both day and night.

This switching movement was executed by uncoupling the two empty coal cars from the remainder of the drag of cars, then kicking or shunting them with sufficient force that they ran over the crossing and onto the lead to Polar Wave Track 4, after the engine and the remainder of the drag of cars stopped before reaching the crossing. Respondent lined up the switch, as he was instructed to do, then crossed to the other side of the track so as to be in a proper position to guard the crossing. While crossing the track, his left foot was caught in a hole in the crossing planks, and before he could extricate himself he was struck by the two empty coal cars, and injured in the manner heretofore indicated.

Appellant's switch foreman...