Cox v. Railroad Co.

• Decision Date: 10 June 1933
• Docket Number: No. 30083.,30083.
• Citation: 61 S.W.2d 962
• Parties: VERN COX v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

61 S.W.2d 962

VERN COX v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.

No. 30083.

Supreme Court of Missouri, Court en Banc.

June 10, 1933.

Appeal from Cass Circuit Court. — Hon. Leslie A. Bruce, Judge.

REVERSED.

Edward J. White, Thomas J. Cole, L.J. Bishop and D.C. Chastain for appellant.

(1) The court erred in submitting the case to the jury because the injury to the plaintiff was the result of a risk assumed by him. U.S.C.A., sec. 54; Martin v. Wabash Ry. Co., 30 S.W. (2d) 735; Railroad Co. v. Allen, 276 U.S. 165; Jacobs v. Southern Ry. Co., 241 U.S. 229; Martin v. Railway Co., 302 Mo. 506. (2) It was error to submit the case to the jury under count one because the plaintiff's rights were governed, if not in interstate commerce, by the Kansas Workmen's Compensation Act. Laws of Kansas, 1917, pp. 301-318; Secs. 44-501, 44-505, 44-508, R.S. Kansas 1923; Unrine v. Railroad Co., 104 Kan. 236, 178 Pac. 614; C.R.I. & P. Ry. Co. v. Fuller, 105 Kan. 608, 186 Pac. 127; Gimple v. Hines, 122 Kan. 260, 193 Pac. 1072; Frere v. Railway Co., 94 Kan. 57, 145 Pac. 864; Echord v. Rush, 122 Kan. 260, 251 Pac. 1112; Smith v. Western Cement Co., 94 Kan. 501, 146 Pac. 1026; McDonnel v. Swift, 259 Pac. 695, 124 Kan. 327; Leebolt v. Leeper, 275 Pac. 1087, 128 Kan. 61; Moeser v. Shunk, 226 Pac. 786, 116 Kan. 247; Shade v. Ash Grove Lime & Portland Cement Co., 92 Kan. 146, 139 Pac. 1193; McRoberts v. Natl. Zinc Co., 93 Kan. 364, 144 Pac. 248. (3) It was further error to submit count two to the jury because the plaintiff was not engaged in interstate commerce. Railway Co. v. Winters, 242 U.S. 353; Ill. C. Ry. Co. v. Peery, 242 U.S. 292; Martin v. Railway Co., 302 Mo. 506; Jarvis v. Railway Co., 37 S.W. (2d) 602.

Charles Stephens, C.E. Rumery, C.R. Stauffacher, J.S. Brierly and Rodgers & Buffington for respondent; Oscar S. Hill of counsel.

(1) Under the facts disclosed in evidence in this case the respondent did not assume the risk of his injury under the Federal Employers' Act or the Kansas Railroad Liability Act. Martin v. Railway Co., 30 S.W. (2d) 741. (2) Respondent's claim for damages was not governed by the Kansas Workmen's Compensation Act but was properly founded upon negligence under liability statutes. R.S. Kansas, 1923, secs. 77-109; 66-235, 66-237, 66-238 and 44-547; King v. Railway Co., 108 Kan. 373; Defenbaugh v. Railroad Co., 102 Kan. 569; Fangmeier v. Railroad Co., 115 Kan. 496; Great Western P.C. Co. v. Public Service Commission, 121 Kan. 531; Hurlbut v. Bush, 284 Mo. 397, 224 S.W. 323; Truman v. Railroad Co., 98 Kan. 761; Rockhold v. Railroad Co., 97 Kan. 722; Gentry v. Davis, 115 Kan. 339. (3) It was not error to submit count two to the jury for the reason that the question whether plaintiff was then aiding in interstate commerce was a question of fact for the jury, and, whether then in interstate or intrastate commerce is immaterial because the defenses and the computation of amount due are the same under both acts — the Federal Employers' Liability Act and the said Kansas Railroad Liability Law. Railroad Co. v. McAdow, 240 U.S. 51; Railroad Co. v. Gray, 237 U.S. 399; Kasper v. Railway Co., 111 Kan. 267.

FRANK, J.

Action by plaintiff, respondent here, to recover damages for alleged personal injuries. Plaintiff recovered judgment in the sum of $12,500 and defendant appealed.

Plaintiff was injured on January 17, 1927, at Concordia, Kansas. The petition is in two counts, both alleging the same state of facts with reference to the occurrences which caused the injury. The first count is based on the Kansas Statute, known as the Railroad Employers' Liability Act, and seeks a recovery because of the alleged negligence of defendant. The second count alleges that plaintiff and defendant were engaged in interstate commerce and seeks a recovery under the Federal Employers' Liability Act.

Defendant's answer to the first count of the petition (1) denies generally the allegations of said count, (2) pleads assumption of risk, (3) that plaintiff's own negligence was the sole cause of his injuries, and (4) that plaintiff's cause of action is governed by the Workmen's Compensation Law of the State of Kansas, which provides the only remedy by which plaintiff may acquire compensation for his alleged injuries.

The answer to the second count denies generally the allegations of said count, then pleads assumption of risk and that plaintiff's own negligence was the sole cause of his injuries.

Plaintiff's reply (1) denies generally the allegations of defendant's answer, and (2) denies that the Workmen's Compensation Law of Kansas applies to plaintiff's cause of action, then affirmatively pleads a section of the Workmen's Compensation Act (Section 44-547, Revised Statutes of Kansas, 1923) which reads as follows:

"Nothing in this act shall be construed to amend or repeal Laws 1907, chapter 281, section 1, or Laws 1911, chapter 239, the same being `An act relating to the liability of common carriers by railroads to their employees in certain cases, and repealing all acts and parts of acts so far as the same are in conflict herewith.'"

Respondent raises some question as to the sufficiency of defendant's pleading and proof of the provisions of the Workmen's Compensation Law of the State of Kansas, but we need not give this question further consideration because it affirmatively appears from the record that the parties stipulated and agreed that the Workmen's Compensation Law of Kansas as set forth in the published volume of the Session Laws of 1917 should be considered as a part of the record in the case. In this situation, the entire act is before us.

It appears from plaintiff's petition that on January 17, 1927, he was in the employ of defendant railroad, and while in the line of his duty and in the course of his employment in the yards of defendant at Concordia, Kansas, he fell from the ladder of an engine, his left foot was caught under the drive wheel of the engine and was crushed to such an extent that it was necessary to amputate his leg at a point about eight inches below the knee.

Appellant contends that plaintiff's rights are governed by the Workmen's Compensation Act of the State of Kansas. If so, the judgment in this case under the Railroad Employers' Liability Act cannot be upheld.

The provisions of the Workmen's Compensation Law appear in Laws of Kansas 1917 beginning at page 301. Section 1 of said act provides, "That this act shall apply only to employment in the course of the employer's trade or business on, in or about a railway, factory, mine or quarry, ..." Section 2 of the act provides, "In this act, unless the context otherwise requires: (a) `Railway' includes street railways and interurbans; and `employment on railways' includes work in depots, power houses, round houses, machine shops, yards, and upon the right of way, and in the operation of its engines, cars and trains... ." Section 23 of said act provides that every employer entitled to come within the provisions of the act, shall be presumed to have done so, unless such employer shall file with the Secretary of State at Topeka, Kansas, a written statement that he elects not to accept thereunder. Section 24 of the act makes the same provision with reference to employees.

Respondent makes the contention that the Workmen's Compensation Act did not repeal the Railroad Employers' Liability Act, and that his case was properly brought under the latter act.

It is true that the Railroad Employers' Liability Act was not repealed by the Compensation Act, but it does not follow that plaintiff is entitled to maintain this action under that act, because it was not repealed. The evident purpose of the Legislature in not repealing that act was to preserve in force a law which would apply to and regulate the liability of all such railroads as elected not to accept the provisions of the Workmen's Compensation Act. But the specific reason why plaintiff is not entitled to maintain his alleged cause of action under the Railroad Employers' Liability Act is because the provisions of the Workmen's Compensation Act to which we have called attention placed both defendant railroad and plaintiff under the act until they or either of them elected not to accept thereunder. No such election having been made, both parties are under the Workmen's Compensation Act and that act furnishes the only remedy plaintiff has against his employer. The Supreme Court of the State of Kansas has so construed the act. In the case of Gimple v. Hines, Director General, 108 Kan. 118, 193 Pac. 1072, that court said:

"There can be no doubt the Director General had the power to say whether he would operate the Union Pacific Railroad property in Kansas under the provisions of the Kansas Compensation Act, with its limited and modest, but certain, allowances of compensation to his injured workmen, or whether he would take his chances under the old law, with its possibly larger judgment liabilities, but also with its often successfully invoked defenses of contributory negligence and assumption of risk. We say the Director General had power to choose; moreover, he was bound to choose. He was bound to conform to the state law. That law placed him under the Compensation Act unless he chose to operate the railroad property outside its provisions... . The state law, therefore, so far as practicable, was to remain the same. And the state law is that every employer of railroad workingmen, and each succeeding employer for himself independently (Unrine v. Railroad Co., 104 Kan. 236, 178 Pac. 614), shall be deemed to be operating his business under the act unless he takes affirmative action as prescribed by the statute to relieve himself of its responsibilities. Such is our view. The question is novel, but is merely the application of a Kansas statute; and we find nothing persuasive, helpful, scarcely analogous, in the cases to which our attention is called in the briefs of counsel."

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