Carter v. St. Louis, Troy & Eastern Railroad Company

• Decision Date: 13 April 1925
• Docket Number: 24596
• Citation: 271 S.W. 358,307 Mo. 595
• Parties: FREDERICK ELMER CARTER v. ST. LOUIS, TROY & EASTERN RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

271 S.W. 358

307 Mo. 595

FREDERICK ELMER CARTER v. ST. LOUIS, TROY & EASTERN RAILROAD COMPANY, Appellant

No. 24596

Supreme Court of Missouri

April 13, 1925

Appeal from St. Louis City Circuit Court; Hon. Victor H Falkenhainer, Judge.

Affirmed.

Rassieur & Goodwin for appellant.

(1) The Federal Employers' Liability Act only applies to employees injured while engaged in interstate commerce. Fed Employers' Liability Act, sec. 1, 8 Fed. Stats. Ann. (2 Ed.) 1208. (2) At the time plaintiff received his injuries he was not engaged in any act of interstate commerce. Williams v. Schaff, 282 Mo. 497; Ill. Cen. Ry Co. v. Archer, 74 So. 135; Perez v. Ry. Co., 192 S.W. 274; Reeve v. Railroad, 144 P. 63. (3) In the absence of a special contract an employer owes no duty to an employee to furnish him a suitable or safe place in which to eat his lunch. Allen v. Chehalis Lumber Co., 61 Wash. 159. Therefore, if plaintiff went under the freight car with the permission of the defendant he was, at most, a licensee. Ellsworth v. Metheney, 104 F. 119; Connell v. New York Central, 129 N.Y.S. 666. And in some of the states plaintiff under such circumstances would be held to be a trespasser. Louisville Ry. Co. v. Hocker, 64 S.W. 638; Wilson v. Ry. Co., 113 S.W. 101. (4) The Federal Employers' Liability Act applies only to employees, not licensees or trespassers. Sec. 1, Fed. Employers' Liability Act, 8 Fed. Stats. Ann. (2 Ed.) 1208; Williams v. Schaff, 282 Mo. 497. (5) In actions brought under the Federal Employers' Liability Act the common law as interpreted by the Federal courts governs the action. Pryor v. Williams, 254 U.S. 43; 8 Fed. Stats. Ann. (2 Ed.) 1217. (6) There is no duty on defendant's part to ring a bell, sound a whistle, or otherwise warn section men working on or about a railroad track. Kirkland v. Bixby, 222 S.W. 463. (7) Under the Missouri decisions it is only under the humanitarian doctrine that a section man may recover, and with reference to section men it is held that the defendant is under no duty to take steps to avert the accident until actual knowledge that the section man is in a position of peril, oblivious of his danger. Evans v. Railroad, 178 Mo. 517; Davies v. Ry. Co., 159 Mo. 1; Clancy v. Transit Co., 192 Mo. 615; McGrath v. Transit Co., 197 Mo. 97; Brockschmidt v. Railroad, 205 Mo. 435; Withm v. Delano, 184 Mo.App. 677; Ayers v. Railroad, 190 Mo. 229; Sissel v. Railroad, 214 Mo. 522; Degonia v. Railroad, 224 Mo. 564; Trigg v. Transit Co., 215 Mo. 536; Van Dyke v. Railroad, 230 Mo. 283; Nivert v. Railroad, 232 Mo. 639; Rashall v. Railroad, 249 Mo. 509; Cabal v. Railroad, 251 Mo. 257. (8) Plaintiff was not in a position of peril until the coupling failed to make, and the five cars started to roll towards the car under which he was eating his lunch, and there is no evidence that anything could then have been done to avert the accident. (9) Plaintiff is not entitled to recover on account of any alleged violation of the Safety Appliance Act, because section men eating lunch under a freight car are not within the class of employees that the Safety Appliance Act was enacted to protect. St. Louis Ry. Co. v. Conarty, 238 U.S. 242, 59 L.Ed. 1290; Lang v. New York Central, 255 U.S. 455. (10) In voluntarily going under a freight car to eat his lunch, with knowledge of the danger, plaintiff under the decisions of the Federal courts, assumed as a matter of law, the risk of injury resulting therefrom. Boldt v. Pennsylvania Railroad, 245 U.S. 411, 62 L.Ed. 389; Seaboard Air Line v. Horton, 233 U.S. 492; Pryor v. Williams, 254 U.S. 43; Newberry v. Central Georgia Ry. Co., 271 F. 117. (11) Under the undisputed evidence, plaintiff's remedy, if any, is under the Workmen's Compensation Act of the State of Illinois. Laws Illinois 1913, pp. 335 to 356; Laws Illinois 1921, pp. 446 to 461.

Sidney Thorne Able and Charles P. Noell for respondent.

(1) Defendant's instruction in the nature of a demurrer to the evidence was rightly overruled. (a) Because both plaintiff and defendant were engaged in interstate commerce at the time respondent was injured. The relationship of employer and employee existed during the lunch period, and at the time plaintiff was injured he was on his way to complete the interstate work on the tracks which had been left unfinished at the time his foreman ordered him to lunch. North Carolina Railroad v. Zachary, 232 U.S. 248, 58 L.Ed. 591; Erie Railroad v. Winfield, 244 U.S. 170, 61 L.Ed. 1057; B. & O. Railroad v. Kast, 299 F. 419; Philadelphia Railroad v. Smith, 250 U.S. 101; Grand Trunk Ry. Co. v. Knapp, 233 F. 950; Atlantic Coast Line Railroad v. Williams, 284 F. 162; Graber v. Duluth Railroad Co., 159 Wis. 414; Knowles v. Railroad Co., 223 N.Y. 513; Polloco v. Lehigh Valley Ry. Co., 236 N.Y. 110; B. & O. Railroad Co. v. Whiteacre, 124 Md. 411; Rhea v. Railroad, 171 Mo.App. 160; Jackson v. Butler, 249 Mo. 342. (b) The requirements of the Federal Employer's Liability Act that it shall extend to common carriers engaged in interstate commerce by railroad applies to railroads wholly within a state as well as those running between states, and the Safety Appliance Act also applies to railroads wholly within a state. Devine v. Railroad, 259 Ill. 449; United States v. Colorado Railroad, 157 F. 321, 15 L. R. A. (N. S.) 167; Wabash Railroad Co. v. United States, 168 F. 1; United States v. Railroad Co., 143 F. 353; Chicago K. & S. Ry. Co. v. Kindlesparper, 234 F. 1; Trowbridge v. Belt Ry., 192 Mo.App. 52; Findley v. Coal & Coke Co., 76 W.Va. 747; Ross v. Sheldon, 176 Iowa 618. (c) A section man does not assume the risk where a train is not operated in the usual and customary manner. Davis v. Philadelphia Ry. Co., 276 F. 187; Lehigh Railroad v. Doktor, 290 F. 763; Director-General v. Templin, 268 F. 483; Waiswila v. Ill. Cent. Railroad Co., 220 Ill.App. 113. (d) Railroad tracks over which both intra- and interstate commerce is hauled are instrumentalities of interstate commerce and section men employed in the maintenance or repair of same are engaged in interstate commerce. Pederson v. Railroad, 229 U.S. 146, 57 L.Ed. 1125. (2) The mere violation on the part of defendant of the Safety Appliance Act gives plaintiff a good cause of action regardless of whether or not at the time the plaintiff was injured he was engaged in interstate commerce. L. & N. Railroad v. Layton, 243 U.S. 617; Director-General v. Ronald, 265 F. 143; Payne v. Connor, 274 F. 497; Erie Railroad v. Caldwell, 264 F. 947; Jones v. Payne, 233 Ill. 480; Chicago, Rock Island & Pacific v. Brown, 229 U.S. 317, 57 L.Ed. 1204. (3) Plaintiff's contributory negligence, if any, is not only no defense to a cause of action arising under Safety Appliance Act, but is not even to be taken into consideration in diminishing the damages. Sec. 3, 35 U.S. Stat. 65-66. (4) In actions under Employers' Liability Act contributory negligence and assumption of risk do not bar plaintiff's recovery where statute enacted for the safety of employees such as the Safety Appliance Act has been violated. Section 8660 (Act April 2, 1908, Chap. 149, sec. 4, U.S. Compiled Statutes); Union Pacific Railroad Co. v. Huxoll, 245 U.S. 535; Payne v. Connor, 274 F. 497; Erie Railroad Co. v. Schleenbaker, 257 F. 667; Erie Ry. Co. v. Purucher, 244 U.S. 320, 61 L.Ed. 1166; Baughan v. Ry. Co., 241 U.S. 237; Texas Ry. Co. v. Rigsby, 241 U.S. 33; Grand Trunk Western Ry. Co. v. Lindsay, 233 U.S. 42.

Ragland, P. J. All concur, except Atwood, J., not sitting.

OPINION

RAGLAND

This was an action for personal injuries, the right of recovery being based upon the Federal Employers' Liability and Safety Appliance acts. There was a judgment for plaintiff in the trial court, to reverse which defendant prosecutes this appeal. The only error assigned by appellant is the failure of the court to direct a verdict for the defendant. The facts necessary to an understanding of the questions involved, as gathered from plaintiff's evidence, may be outlined as follows:

The defendant owned and operated a small railroad located wholly within the State of Illinois. It consisted of nineteen miles of track running east and west from East St. Louis to Troy -- its main line, and seven miles of track running north and south from Formosa to Leclair, known also as the Belt Railway. The latter line intersected the former at Troy Junction, and the two were connected by means of a Y. Commencing at a point a few feet north of the intersection and extending north along the east side of the Belt Line and paralleling it, there were two sidings; the one next to the main track was known as track No. 1, and the other as track No. 2. They were connected with the main track by switches and each was of sufficient length to hold thirty-five cars. These two sidings were called interchange tracks. The defendant and the Illinois Terminal were connecting carriers and each delivered on these tracks cars of freight, the carriage of which was to be continued or completed by the other. No switch engine was in use in the yards at Troy Junction, but when defendant's trains came in (they ran on no regular schedule) they frequently set cars on the exchange track and picked up others, necessitating switching movements. Defendant was engaged in both intrastate and interstate commerce, and its tracks, roadbed and other facilities were used indiscriminately in both.

Plaintiff was employed by defendant as a section man; his sole duty was to labor on defendant's tracks and roadbed. Under his contract of employement he was to work eight hours a day from 7:30 in the morning until four o'clock in the afternoon, with an interval of thirty minutes, from 11:30 until noon, for lunch. In actual practice the lunch period for him and the men with whom he worked was not determined by...