Callahan v. St. Louis Merchants' Bridge Terminal Railroad Co.

• Decision Date: 10 December 1902
• Citation: 71 S.W. 208,170 Mo. 473
• Parties: CALLAHAN v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

71 S.W. 208

170 Mo. 473

CALLAHAN v. ST. LOUIS MERCHANTS' BRIDGE TERMINAL RAILROAD COMPANY, Appellant

Supreme Court of Missouri

December 10, 1902 ^[*]

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferris Judge.

Affirmed.

John H Overall for appellant.

(1) Appellant is not liable in this case because plaintiff was not, within the meaning of section 2873, Revised Statutes 1899, engaged in the work of operating its railroad. (2) Plaintiff's co-employees, through whose negligence he was injured, were not engaged in the work of operating appellant's railroad. (3) The fellow-servant act of Missouri having been taken from that of Iowa, is presumed to have been adopted with the construction given to it by the courts of Iowa. State v. Chandler, 132 Mo. 161; Collins v. Wilhoit, 35 Mo.App. 590; Skouten v Wood, 57 Mo. 382; Kimball v. Davis, 52 Mo.App. 208; Bank v. Hoffman, 74 Mo.App. 208. (4) The uniform construction given to the act by the courts of Iowa is that it applies only to those employees whose work has direct connection with the movement of trains, locomotives or cars. Deppe v. Railroad, 36 Iowa 52; Schroeder v. Railroad, 41 Iowa 344; Potter v. Railroad, 46 Iowa 399; Pyne v. Railroad, 54 Iowa 223; Bucklew v. Railroad, 64 Iowa 603; Foley v. Railroad, 64 Iowa 644; Malone v. Railroad, 65 Iowa 417; Luce v. Railroad, 67 Iowa 75; Matson v. Railroad, 68 Iowa 22; Stroble v. Railroad, 70 Iowa 555; Pierce v. Railroad, 73 Iowa 140; Larson v. Railroad, 91 Iowa 81; Keatly v. Railroad, 94 Iowa 685, 103 Iowa 282; Canon v. Railroad, 101 Iowa 613; Akeson v. Railroad, 106 Iowa 54; Reddington v. Railroad, 108 Iowa 96; Railroad v. Artery, 137 U.S. 507. And a like construction has been given the act in Minnesota, in Kansas and in Texas. Lavalle v. Railroad, 40 Minn. 249; Johnson v. Railroad, 43 Minn. 222; Pearson v. Railroad, 47 Minn. 9; Weisel v. Railroad, 79 Minn. 245; Railroad v. Medaris, 60 Kan. 151; Lawrence v. Railroad, 61 S.W. 342. (5) Any other construction of the act would render it violative of the Constitution of Missouri and of the fourteenth amendment to the Federal Constitution. State v. Loomis, 115 Mo. 314; State ex rel. v. Pike county, 144 Mo. 280; Covington & Lex. Turnp. Co. v. Sanford, 164 U.S. 592; Railroad v. Ellis, 165 U.S. 150; Paddock v. Railroad, 155 Mo. 537; Akeson v. Railroad, 106 Iowa 54; Railroad v. Mackey, 127 U.S. 205; State ex rel. v. Lewis, 101 U.S. 22; Yick Wo v. Hopkins, 118 U.S. 356; Hayes v. Missouri, 120 U.S. 68; State ex rel. v. Ashbrook, 154 Mo. 375; In re Flukes, 157 Mo. 125; Millett v. People, 117 Ill. 294; Stimson v. Muskegon Booming Co., 100 Mich. 347; In re Eight Hour Law, 21 Colo. 29; Walley v. Kennedy, 2 Yerg. (Tenn.) 554. (6) The statute, being in derogation of the common law, will not be extended to cover cases which do not fairly come within its meaning and are not necessary to effectuate its beneficent purpose. State v. Clinton, 67 Mo. 380; Fisher v. Blight, 2 Cranch 399; King v. Poor Law Commissioners, 6 Ad. & Ell. 7; Steppacher v. McClure, 75 Mo.App. 139; Schultz v. Railroad, 36 Mo. 13; Smith v. Haworth, 53 Mo. 88; Sazarin v. Railroad, 153 Mo. 485. (7) The words "the work of operating such railroad" should be taken in their ordinary meaning and usual sense. And the word "operating" is intended to exclude the words "construction" and "maintenance." State v. Jones, 102 Mo. 307; Warren v. Barber Paving Co., 115 Mo. 576; State ex rel. v. Johnson, 132 Mo. 109; State ex rel. v. Slover, 126 Mo. 660. (8) The purpose and object of the statute furnish a key to its interpretation, as also the usages existing at the date of its enactment. Ross v. Railroad, 111 Mo. 25; Carson-Rand Co. v. Stern, 129 Mo. 387; Bank v. Skeen, 101 Mo. 683. (9) The first instruction given for plaintiff is erroneous because it leaves it to the jury to determine whether plaintiff was "engaged in the work of operating the railroad," thus leaving to the jury the true construction of the statute.

A. R. Taylor for respondent.

The first point made for a reversal by the appellant is untenable. The plaintiff's first instruction does not submit to the jury the question of law as to whether or not the plaintiff, as a section-hand laborer, was engaged in "aiding in the work of operating defendant's railroad at the bridge approach of Ferry street, in the City of St. Louis," but on the contrary the instruction assumes as a matter of law that a section-hand laborer, while engaged in his duties as such, is aiding in the operation of a railroad, within the meaning of the fellow-servant law. The court, in giving that instruction, declared that a section-hand laborer for a railroad company is, under the fellow-servant law of this State "engaged in the work of operating a railroad." The language of that act is different from any one of the fellow-servant acts of the United States. The language of this act, all will agree, includes the plaintiff as section hand, within the terms of its protection, if his work and duties were to aid in the operation of the defendant's railroad. To cut off from the protection of the act that vast body of railroad employees engaged in the work of keeping the track in repair would sever the body from the head, and leave the benefit of the act for only that comparatively few who are connected with the running of trains. The Legislature, by the act in question, clearly intended to give protection to every employee directly connected with the work of running trains and of keeping in order the tracks whereon the trains should run. This would include all trainmen, all trackmen, all watchmen, all targetmen, all bridge-repairers, station-men and others. These are one and all necessary for the operation of the railroad, and the Legislature, in the exercise of its discretion, determined to give this protection to the whole of this class of employees. If the section man be not engaged in his work in aiding the operation of the railroad, then he can not recover, whether run over by an engine or injured in any other way. Here we find the distinction between the Missouri and Iowa statutes. There is a marked contrast between the Missouri and Iowa statutes, so much so that the scope of the protection afforded is nearly the opposite of each other. In the Iowa statute, as construed by its Supreme Court, the protection is only given to employees who are injured by being run over by cars, or by some negligence about the engines or cars. The statute, in itself, will bear the construction placed upon it by the Supreme Court of Iowa. Though vague in its language, that statute seems to limit the protection to cases where the injured servant is the victim of negligence in the operation of engines and cars, and this would preclude a recovery under the construction given the Iowa statute by its Supreme Court, unless the servant injured owed his injury to the negligent act of some servant in managing the engine and cars. Just the opposite is the plain language of the Missouri statute. Johnson v. Railroad, 43 Minn. 222, is the doctrine of the Supreme Court of Minnesota on the question, and is no authority on the question before the court, when the Supreme Court of the United States has held differently on the question. The decisions of the United States Supreme Court, instead of denying to the States the power to pass laws for the protection of railroad employees, and other similar laws, have uniformly upheld such acts. Railroad v. Humes, 115 U.S. 521; Railroad v. Mackey, 127 U.S. 210.

MARSHALL, J. Burgess, C. J., and Sherwood, Brace, Valliant, and Gantt, JJ., concur; Robinson, J., dissents.

OPINION

In Banc

Court in Banc.

Per Curiam.

The following opinion heretofore rendered by Division One is hereby adopted as the opinion of the Court in Banc. Burgess C. J., and Sherwood, Brace, Valliant, and Gantt, JJ., concur; Robinson, J., dissents.

MARSHALL, J. -- This is an action predicated upon section 2873, Revised Statutes 1899, for damages for personal injuries, by the plaintiff, an employee of the defendant, alleged to have been received in consequence of the negligence of the plaintiff's fellow-servants, employees of the defendant. The plaintiff recovered a judgment for $ 6,500 in the circuit court, and the defendant appealed.

The pertinent allegations of the petition are as follows:

"That the defendant was a corporation and operated a railroad in the State of Missouri. That, on November 15, 1898, the plaintiff was in the service of the defendant, aiding in operating its railroad at or near the bridge approach over Ferry street, in the city of St. Louis. That it was the duty of the plaintiff at said time to watch that people or vehicles were not injured by the fall of ties which were being removed by defendant's employees from its roadbed, and thrown down about fifty feet to the surface of Ferry street, and also to remove such ties from the street. That the rule and custom for doing the work was for the men above, before throwing a tie down to the street, to give notice to the man below that a tie was to be thrown, and then wait for a signal from him before throwing the tie that it was right and safe to throw the tie, thus enabling plaintiff to warn passers-by out of danger and to keep out of danger himself. That, on the day in question, whilst the plaintiff in the due discharge of his said duty was warning off and removing a child from said street, where it was in peril of a falling tie should one be thrown, the defendant's servants above carelessly, and without giving any warning of their intention to throw down a tie, and without receiving any signal from plaintiff that it was safe to do so, threw down a tie, which struck and injured the plaintiff."

There was a further assignment of negligence, in that defendant's...