Christy v. Wabash R. Co.

• Decision Date: 03 April 1916
• Citation: 195 Mo. App. 232,191 S.W. 241
• Parties: CHRISTY v. WABASH R. CO.
• Court: Missouri Court of Appeals

191 S.W. 241

195 Mo. App. 232

CHRISTY v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

April 3, 1916.

Rehearing Denied January 29, 1917.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Action by Laura Christy, administratrix, against the Wabash Railroad Company. From judgment for plaintiff, defendant appeals. Affirmed.

J. L. Minnis and N. S. Brown, both of St. Louis, J. A. Collet, of Salisbury, and Phillips & Phillips, of Moberly, for appellant. Barnett & Barnett, of Sedalia, for respondent.

ELLISON, P. J.

Defendants are receivers of the Wabash Railway Company. For convenience we will treat the company as defendant. It was an interstate carrier of passengers and freight, and plaintiff's deceased husband was in its employ as a member of a switching crew at Moberly, Mo. In attempting to switch a certain car which was intended to be put into a train, deceased was upon the footboard of the engine, and fell between it and the car, and was killed.

Plaintiff's petition is so drawn that an ordinary cause of action for personal injury under the state law is stated and somewhat intermingled, with a statement of a cause of action under the federal Employers' Liability Act for a violation of the Safety Appliance Act. There was no demurrer interposed by defendant, and we think that under the rule, applied in such circumstances, whereby every reasonable intendment is allowed in favor of the pleading, a cause of action under the federal statute is stated. So in the trial each party presented instructions, applicable alone to an ordinary action under the state law. As each did this neither can complain. Besides, so far as plaintiff is concerned, she took upon herself an unnecessary burden. The principal question involves a construction of the federal Safety Appliance Act, connected, as it has been by the parties, with the law applicable to interstate commerce.

The evidence tended to show that deceased, being a member of a switching crew in defendant's yards at Moberly, was ordered shortly after midnight to assist in a "flying switch" of a certain car which was to be placed in position convenient to be put into a local train to be taken out that morning to Sturgeon, a town a few miles below Moberly and in the same state. The evidence showed that both the engine and car were equipped with automatic couplers as provided in the federal Safety Appliance Act, so that, in ordinary use, they would couple automatically by impact and could be uncoupled without going between the cars. But the evidence further showed that making a "flying switch" would prevent the use of the appliances required by the Safety Appliance Act.

The "flying switch," such as was attempted in this case, was stated by the engineer in this way:

"The car is ahead of the engine; then you back up and one man will stand at the switch farther back to throw it between the engine and the car; in order to do that you start, and when the car has enough momentum to pass over the switch you give slack by shutting off enough so that the uncoupling may be made by lifting the pin, and then for the engine to get away by rapid movement, leaving room enough for the man to throw the switch between the car and engine," thus running the car off on another track.

The foreman saw deceased take his position on the footboard between the front of the engine and the car. While he did not, in words, tell him to get on the footboard, he knew and intended that he or the other switchman should do so. He knew he was in that position in obedience to his order to make the flying switch. He was seen there when the engine started to make the switch; shortly his cry was heard that, "You have killed me!" He was then seen lying on the track, and died shortly thereafter. No one saw him fall, but there is evidence and circumstances sufficiently tending to show that he fell in endeavoring from his place on the footboard between the engine and the car to draw the pin from the coupler.

The chief evidence of the use and destination of this car was that it was taken empty to Sturgeon that day in a local freight train, there loaded with eggs and shipped that day to Chicago, Ill. This was put in the record in the shape of the following admission:

"Memorandum in regard to A. R. T. car No. 11880 involved in the injury to Edward Christy, switchman, Moberly yards, about 12:55 a. m. March 18, 1915. The car came into Moberly empty March 5th, and was held in Moberly to be used whenever needed. On the day of the accident the car had been billed to Sturgeon empty, and at the time of the accident was being switched for the purpose of placing it in local freight No. 72 in order to take it to Sturgeon. Train No. 72 took it to Sturgeon March 18th, and it was there loaded with eggs billed and forwarded on the same day to Chicago, Ill."

It was also admitted that defendant was an interstate carrier. In addition to this the foreman, in testifying to the switching, said the car was being put in a convenient place to be put into the local train to be taken to Sturgeon. Besides, defendant's counsel in his statement of defendant's case to the jury admitted the car was being set out to be taken to Sturgeon and then to be loaded with a shipment to go out of the state. He said:

"It is true, as Mr. Barnett [plaintiff's counsel] states, and I think that fact will not be denied, that there was an intention on the part of somebody to ship the car to Sturgeon, and it was the intention of somebody at Sturgeon then to use the car to ship goods out of the state, but that was not the movement being made at the time at all — that the car had not been billed."

The letters A. R. T. descriptive of the car we assume to mean a refrigerator car, fitted for the shipment of eggs and other produce.

We think that these statements and admissions are broad enough to, at least, make it a question for the jury to say whether the car was being taken from Moberly to Sturgeon for the purpose of receiving the interstate shipment of eggs; and the jury's finding that it was is a reasonable and proper inference. We will therefore consider it as a fact that the defendant switched the car from its yards in Moberly and took it to Sturgeon for the purpose of loading it with eggs, there awaiting shipment to Chicago, Ill. The question arising on that state of facts is, Was deceased engaged in interstate commerce when he was killed? We think he was.

It was said in Pedersen v. Delaware, Lackawanna & Western Railroad Co., 229 U. S. 146, 152, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, and in Ill. Central R. R. v. Behrens, 233 U. S. 473, 478, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163, that "the true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?" In the latter case the employé was a fireman on a switch engine which, at the time he was killed, was being used in moving several cars, "all loaded with intrastate freight," to be taken to a point in the same city and state. While in this case, deceased was engaged in switching a car to a place in defendant's yards, where, it is true, it was to be placed in a local train and taken to a station a dozen miles away, but for the purpose of being loaded that day with an interstate shipment. No sound reason can be suggested why that was not interstate service. We think it was such service in a special and immediate sense. For the use to which the car was to be put was the already ascertained service of a specific shipment into another state; and that shipment was to be made on the day the car was being switched out of the yards for that use. The fact that it was taken out of the yards at Moberly, a few miles away, would not be different, in effect, from taking it from the yards at Sturgeon. The case, while not like the Pedersen Case, supra, 229 U. S. loc. cit. 151, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, St. L. San Francisco Ry. v. Seale, 229 U. S. 156, 161, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156, North Carolina R. R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159, and N. Y. Central R. R. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298, falls within the reason of the rule announced in those cases.

We are brought to the question whether there was a violation of the federal Safety Appliance Act. As stated at the outset it was shown by the evidence that defendant's engine and the car being switched were properly provided with automatic couplers which would couple by impact and which could be uncoupled without going between the cars. But as we have said, they could not be utilized without going between the cars. There was abundant evidence to show that a "flying switch" made by the employé standing on the footboard in front of the moving engine could not be accomplished without standing between the engine and car, or without hanging to the end of the car by placing one foot in a stirrup and reaching some part of the body around between the two. We think in these circumstances a case was made for plaintiff. For, notwithstanding an interstate carrier complies with the Safety Appliance Act, yet if it operates the cars so that the appliances cannot be used without doing the thing the act seeks to avoid, i. e., going between...