Clevinger v. St. Louis-S.F. Ry. Co., 34358.

• Decision Date: 20 October 1937
• Docket Number: No. 34358.,34358.
• Citation: 109 S.W.2d 369
• Parties: J.B. CLEVINGER v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

109 S.W.2d 369

J.B. CLEVINGER v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.

No. 34358.

Supreme Court of Missouri.

Division One, October 20, 1937.^*

Appeal from Jackson Circuit Court. — Hon. Daniel E. Bird, Judge.

REVERSED.

Joseph W. Jamison, Henry S. Conrad, L.E. Durham, Hale Houts and I.M. Lee for appellant.

The court erred in refusing defendant's requested peremptory instruction at the close of all the evidence directing a verdict for the defendant. There was no evidence that at the time of his claimed injury plaintiff was employed in interstate transportation, or interstate commerce within the meaning of the Federal Employers' Liability Act. Rissell v. Ry. Co., 336 Mo. 848, 81 S.W. (2d) 621; Jarvis v. Railroad Co., 327 Mo. 400, 38 S.W. (2d) 602; Illinois Cent. v. Behrens, 233 U.S. 473, 34 Sup. Ct. 646; Shanks v. Railroad Co., 239 U.S. 556, 36 Sup. Ct. 188; Chicago, B. & Q. Railroad v. Harrington, 241 U.S. 177, 36 Sup. Ct. 517; Poindexter v. Ry. Co., 319 Mo. 290, 4 S.W. (2d) 285; Chicago & N.W. Ry. v. Bolle, 284 U.S. 79, 52 Sup. Ct. 59; Chicago, E.I. Railroad v. Industrial Comm., 284 U.S. 299, 52 Sup. Ct. 151; N.Y., N.H. & H. Railroad v. Bezue, 284 U.S. 520, 52 Sup. Ct. 205; Erie Railroad v. Collins, 253 U.S. 47, 40 Sup. Ct. 450; Erie Railroad v. Scarzy, 253 U.S. 46, 40 Sup. Ct. 454; Allen v. Ry. Co., 331 Mo. 473, 53 S.W. (2d) 884; Stogsdell v. Ry. Co., 85 S.W. (2d) 453; Sailor v. Mo. Pac. Ry. Co., 322 Mo. 399, 18 S.W. (2d) 82; Aldridge v. Wabash Ry., 335 Mo. 595, 73 S.W. (2d) 401; Fenstermacher v. Ry. Co., 309 Mo. 475; Hudson & M. Railroad Co. v. Iorro, 239 Fed. 855; M.K. & T. Ry. v. Watson, 195 S.W. 1177; Morrison v. C. Ry. Co., 175 Pac. 325 certiorari denied 249 U.S. 611; Arizona Eastern Ry. v. Haed, 222 Pac. 1041; Montgomery v. Term. Railroad Assn., 335 Mo. 348, 73 S.W. (2d) 236; Hallstein v. Railroad Co., 30 Fed. (2d) 594; Milburn v. Railroad Co., 331 Mo. 1171, 56 S.W. (2d) 80; Dupuis v. Louisiana Ry. & Nav. Co., 99 So. 709; International-Great Northern Railroad v. Sifuentes, 6 S.W. (2d) 192; Central & Indiana Ry. v. Mitchell, 199 N.E. 439; Baxter v. Ry. Co., 139 Kan. 449; Chesapeake & Ohio Ry. v. Rucker, 54 S.W. (2d) 643; Rice v. B. & O. Railroad, 42 Fed. (2d) 391.

Cope & Hadsell, Cowgill & Popham and John F. Cook for respondent.

The trial court did not err in refusing defendant's peremptory instruction requested at the close of all the evidence because under the evidence and authorities plaintiff at the time of his injury was engaged in physically maintaining and keeping in physical order and repair an interstate instrumentality, the main line tracks and roadbed of defendant and was engaged in work necessary to the safety and actual carrying on of transportation over said instrumentality: And if he were not, defendant's trial theory in the court below now estops it from raising such point on this appeal. Shanks v. Railroad Co., 36 Sup. Ct. 188, 239 U.S. 556; Pedersen v. Railroad Co., 229 U.S. 146, 33 Sup. Ct. 648; Sailor v. Mo. Pac. Ry. Co., 18 S.W. (2d) 82; Miller v. Cent. Railroad Co., 58 Fed. (2d) 635, certiorari denied 53 Sup. Ct. 18; Illinois Cent. Railroad Co. v. Industrial Comm., 182 N.E. 626, certiorari denied 53 Sup. Ct. 377; Prink v. Ry. Co., 279 Pac. 1115; Louisville & N. Railroad Co. v. Blankenship, 74 So. 960, 199 Ala. 521; Quirk v. Railroad Co., 235 N.Y. 405, 135 N.E. 556; Plass v. Central New England Ry. Co., 221 N.Y. 472, 117 N.E. 952; Myers v. Railroad Co., 246 S.W. 265; Southern Pac. Co. v. Industrial Acc. Comm., 40 Sup. Ct. 136, 64 L. Ed. 259. Appellant did not object to plaintiff testifying to the ultimate facts of his employment. Therefore, such testimony is in the record for all purposes. Roberts v. Schaper Stores Co., 3 S.W. (2d) 244; Mayne v. May Stern Furniture Co., 21 S.W. (2d) 213; Ridenhour v. Oklahoma Cont. Co., 45 S.W. (2d) 112; Donnell v. Stein, 53 S.W. (2d) 907; Scanlon v. Kansas City, 81 S.W. (2d) 939. That plaintiff was engaged in interstate commerce within the meaning of the Federal Employers' Liability Act did not have to be proved by positive evidence, but it is sufficient if proved circumstantially, and the jury had a right to find such employment in the case at bar. Berry v. Ry. Co., 26 S.W. (2d) 993. Appellant is estopped from raising its point that its peremptory instruction should have been given on the theory that plaintiff failed to prove that he was engaged in interstate commerce because it permitted plaintiff in the court below to testify to the ultimate facts that he was so engaged; told its foreman on the witness stand that such testimony or evidence was not material; did not offer to submit any such question to the jury by way of instruction; did not specifically make such defense in this case, but generally treated such question as admitted. Kelso v. Ross Const. Co., 85 S.W. (2d) 531; Ostrander v. Messmer, 289 S.W. 609; Kincaid v. Birt, 29 S.W. (2d) 97; In re McMenamy's Guardianship, 270 S.W. 662.

HAYS, J.

By this action, brought under the Federal Employers' Liability Act (45 U.S.C.A., Sec 51), the respondent seeks to recover damages for personal injury received by him on June 29, 1931, while employed by the appellant as a section hand, at a point near Ritchey, Missouri. The work in which the respondent was engaged at the time was being performed on appellant's main line of railway, operated between St. Louis and Oklahoma City, over which appellant daily operated between those points trains of cars in carrying on both interstate and intrastate commerce. Respondent recovered a verdict and judgment for $25,000. The defendant has appealed. The principal errors assigned are in the denial of appellant's final demurrer to the evidence and in excessiveness of verdict.

Respondent's petition alleged that when he received his injury he and the appellant, in the performance of the work in question, were engaged in interstate commerce and transportation and in the furtherance thereof. Respondent's principal instruction required the jury to find that respondent was "engaged in work incident to the physical maintenance of main line tracks over which defendant operated interstate trains" and that "plaintiff and defendant were at said time engaged in interstate commerce."

The respondent, who lived at Ritchey, had at times previous during a period of some eight years, worked for appellant as a section hand. On said day (and a portion of the day before, it seems) he was working as an extra with English, a regularly employed section man, and under the supervision and direction of Hillerby, their foreman. Respondent's petition alleged that on said day respondent and English were engaged in cutting weeds on said main line right-of-way and removing ties found in ditches alongside the right-of-way; "that it became necessary to remove a new creosoted tie from along said ditch and while respondent and English were carrying the tie to the shoulder of the right-of-way, the tie was suddenly and negligently dropped by English without signal or warning, jerking the same out of respondent's hands, causing it to fall and strike another creosoted tie there on the ground, with the direct result that creosote was splashed in his eye, whereby he was permanently injured.

The petition also pleaded a long-established practice and rule of appellant to warn in such case. (This practice or rule was not seriously disputed in the trial.)

The answer contained a general denial; also special plea "that if plaintiff was injured" at the time and place alleged, "such injury, if any" was caused by a risk which plaintiff assumed.

The reply was a general denial.

[1] As the farthest reaching assignment of error involves the contention that respondent was not engaged in interstate commerce within the meaning of the Federal Act referred to, we take this assignment first, after prefacing our consideration of it with a somewhat detailed statement of the testimony relating to it.

According to respondent's version of the facts leading up to the casualty, on the day in question he and English were engaged in cutting weeds and clearing off the shoulder of the right-of-way and moving ties out of the right-of-way, "cutting" and moving them and taking them back along the track. These ties were heavily covered with creosote. "They had been unloaded off the car and rolled off in the water ditch and the order was to keep them carried out, and we were carrying them out of the ditch and up on the shoulder and rotating them along the shoulder. (He explained "rotating" to mean placing the ties end to end, parallel with the tracks) ... the ties had liquid creosote on them and running off; this had killed the grass they were lying in. The shoulder is the side of the railway embankment leading out from the ballast. There were so many (8 or 10) of these ties rolled off that we carried them out and rotated them along the track. This was the last tie in the ditch that we were carrying. We had rotated them and we came up to the dump, and carried up on and going up to the side of this tie that was laying there. I was behind and looking and listening for him to give the warning. He was head man. When he got up within a couple of feet of the place — I lacked two or three feet of being there — he just pitched this tie without any warning or signal ... I was looking at him... . It pulled me down when he pitched the tie. It landed on the end of the other tie that was laying there and creosote got in my eye, from one or the other of those two ties." No one saw the occurrence; it was just at quitting time (five o'clock) and in a brief time the foreman, who was down the track some seventy-five yards distant, signaled to them to come in. Respondent testified they were not cutting weeds in the ditch where the ties lay, but on the shoulder; they had not cut weeds at the place where they were putting the ties, which was right along the edge of the ballast.

The respondent in the course of this...