Crecelius of Estate of Crecelius v. Chicago, Milwaukee & St. Paul Ry. Company

• Decision Date: 13 June 1918
• Citation: Crecelius of Estate of Crecelius v. Chicago, Milwaukee & St. Paul Ry. Company, 205 S.W. 181, 274 Mo. 671 (Mo. 1918)
• Parties: MAUDE CRECELIUS, Administratrix of Estate of WALTER CRECELIUS, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

205 S.W. 181

274 Mo. 671

MAUDE CRECELIUS, Administratrix of Estate of WALTER CRECELIUS, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

Supreme Court of Missouri

June 13, 1918

Appeal from Grundy Circuit Court. -- Hon. Geo. W. Wanamaker, Judge.

Reversed and remanded.

Fred S Hudson for appellant.

(1) The deceased was not engaged in interstate commerce at the time of his death, as the accident occurred at 6:30 o'clock in the evening, after the day's work was over, and the test as to whether or not the case is rightfully brought under the Federal Employers' Liability Act, is what the deceased was doing at the time of the injury. Illinois Central v Behrens, 233 U.S. 473; Shank v. El. & W Railroad., 239 U.S. 556; Erie Railroad v. Welch, 242 U.S. 303; Jacoby v. C. M. & St. P., 161 N.W. 753. (2) As deceased was an employee and not engaged in interstate commerce at the time of his death, was familiar with the yards and the movement of trains, the defendant owed him no duty except not to wantonly or wilfully injure him. The "last-clear-chance doctrine" would not apply in this case. Cahill v. Railroad, 205 Mo. 408; Dagonia v. Railroad, 224 Mo. 564; Rashall v. Railroad 249 Mo. 519; Gaball v. Railroad, 251 Mo. 270. (3) As the company at this time was engaged in constructing a temporary track and deceased was employed in this construction work, neither the deceased nor defendant was engaged in interstate commerce at the time of this accident, so far as the work that was being performed by both the defendant and the deceased is concerned. The construction work at that time was not and probably might never be used in interstate commerce. Pederson v. Railroad, 229 U.S. 146; New York Central v. White, 243 U.S. 188; Raymond v. Ry. Co., 243 U.S. 43; Bravis v. Ry. Co., 217 F. 234; Chicago & E. Railroad v. Steel, 108 N.E. 4. (4) The stipulation filed in this case shows that the extra gang of which Crecelius was the time-keeper was constructing a temporary track, hence this suit is not properly brought under the Federal Employers' Liability Act. (5) Instruction 11 on the measure of damage is erroneous and is not the proper method of determining damage under the Federal Employers' Liability Act. C. & O. Railway v. Kelley, 241 U.S. 485; C. & O. Railway v. Gainey, 241 U.S. 494. (6) Instruction 5 does not properly declare the rule for assessing damage under the law under which this case is brought. Dowell v. Railroad, 190 S.W. 939; Seaboard Air Line Railroad v. Tilghman, 237 U.S. 499; Norfolk Railroad Co. v. Earnest, 229 U.S. 114.

Platt Hubbell, Geo. H. Hubbell for respondent.

(1) Defendant railway company negligently killed deceased. Pittsburg Ry. Co. v. Glinn, 219 F. 148; Delaware, L. & W. R. Co. v. Hughes, 240 F. 941; Seaboard Air Line Ry. Co. v. Koennecke, 36 S.Ct. 127; Huxoll v. Union Pac. R. Co. 155 N.W. 900; McWhirt v. Railway Co., 187 S.W. 830; Trivette v. Railway Co., 212 F. 641; Anest v. Railroad, 154 P. 1100; Kippenbrock v. Wabash R. Co., 194 S.W. 50; Jetter v. St. Joseph Terminal Ry. Co., 193 S.W. 956. (2) Defendant and deceased were engaged in interstate commerce at the time Crecelius was killed. This case is governed by the Federal Employers' Liability Act. Southern Ry. Co. v. McGlin, 240 F. 649; Cincinnati Ry. Co. v. Hall, 243 F. 76; Columbia & P. S. R. Co. v. Sauter, 223 F. 604; Pecos & Northern Tex. Ry. Co. v. Rosenbloom, 36 S.Ct. 390; Long v. Lusk, 186 S.W. 601; Grand Trunk Ry. Co. v. Knapp, 233 F. 950; North Carolina R. R. Co. v. Zachary, 232 U.S. 260; N. Y. C. & H. R. R. v. Carr, 238 U.S. 260; Ross v. Sheldon, 154 N.W. 499; Sells v. A. T. & S. F. Ry. Co., 181 S.W. 106; Pederson v. Railroad, 229 U.S. 146; Philadelphia B. & W. R. Co. v. McConnell, 228 F. 263; Sanders v. Railway Co., 97 S.C. 50; Railroad Co. v. Seale, 229 U.S. 156; Erie Railroad Co. v. Winfield, 37 S.Ct. 556; Denver & R. G. Railroad Co. v. DaVella, 165 P. 254. (3) The stipulation is not the only evidence of what defendant railway company and deceased were doing. Plaintiff has a right to prove that defendant and deceased were doing work additional to that mentioned in the stipulation. Plaintiff offered the stipulation "for the purpose of showing the use made of the work-train." Burnham et al. v. St. Ry. Co., 88 F. 628; 12 Ency. Evidence, 83, 84; 12 Ency. Evidence, 101, Note 71. (4) Plaintiff's instruction numbered 5 is correct. Kippenbrock v. Wabash R. Co., 194 S.W. 52; Norfolk & Western Ry. v. Earnest, 229 U.S. 120; M. K. & T. Ry. Co. v. Rentz, 162 S.W. 959; Illinois C. R. Co. v. Skaggs, 36 S.Ct. 252; Fish v. Railroad, 263 Mo. 106; Haines v. Railroad, 193 Mo.App. 453; Iron Mountain v. Rogers, 176 S.W. 696; Humphfres v. Western Pac. Ry. Co., 160 P. 415.

FARIS, J. Graves, C. J., Bond and Woodson, JJ., concur; Graves, C. J., in separate opinion, in which Woodson J., joins; Walker, J., dissents; Blair and Williams, JJ., concur in paragraphs one and three, but dissent as to paragraph two and the result.

OPINION

In Banc.

FARIS J.

This is an action brought by plaintiff, as the administratrix of one Walter Crecelius, deceased, against defendant, under the Federal Employers' Liability Act, for the alleged negligent killing of plaintiff's decedent. Upon a trial in the circuit court of Grundy County plaintiff had judgment for the sum of $ 25,000, from which judgment, after the conventional procedure, defendant has appealed.

As stated, plaintiff brings this action as the administratrix of said Crecelius, whom we shall, for brevity, hereinafter call deceased. The deceased, at the time he lost his life, was in the employ of defendant as a timekeeper for a gang of Bulgarian and Armenian laborers, who were engaged at or near the little village of Morley, in the State of Iowa, in repairing the main line track of defendant, and in constructing a temporary track, thereafter to be used for main line traffic, pending the lowering of the grade of defendant's main interstate-railroad track. Deceased was killed at about the hour of 6:30 in the evening of March 14, 1913. At this time the gang of laborers of which deceased was timekeeper had quit work for the day and had returned to the boarding cars and eaten their suppers. It was the duty of deceased as timekeeper to make a record of the number of laborers engaged in work, of the hours worked by each laborer, of the nature of the work done by the gang, of the number of ties laid, the amount of steel put in, and various other details, showing the progress of the work and the material used therein. It was also the duty of deceased to make daily reports showing the above facts, as well as monthly reports, once each month. The reports, which deceased was required to make daily both by wire and by mail, were made to the division roadmaster at Marion, Iowa. He was accustomed to make out these reports after work hours, since this was the only time at which it was possible for him to have the information which he was required to include in them. He was in the habit of preparing these reports between 6:30 o'clock and 7:00 o'clock in the evening of each day, and of transmitting same both by mail and by wire as early as possible thereafter.

On the day that deceased was killed, and after he with the gang of laborers had returned from work upon the main track and the said temporary track, he ate his supper and made out his daily report for transmission by wire to the roadmaster. A few minutes (one witness said two to five minutes) before he was killed, he left the car in which he kept his desk, with the remark that he was going to send his message. After going out of his office car he went into the car occupied by the interpreter of the gang. He remained in this car but a moment, and then came out and started across the tracks of defendant toward the depot, wherein the telegraph office was maintained. In the meantime, a freight train of defendant, called in the testimony a way-freight, had come up to the depot, and had stopped there apparently for the purpose of discharging freight. As deceased went across the tracks of defendant toward the depot, he stopped in the middle of what is called the passing-track, at a point some ten feet from the locomotive of the way-freight, and stood at this point apparently looking at this train. After he had been standing in this position for some twenty-five seconds, he was run down and killed by a car attached to the work-train, which was used in hauling the material for this gang of laborers. At this time the work-train was doing certain switching in the yards at Morley, for the purpose of making up the train to return to Marion, Iowa, which was a division point, and a station upon defendant's railroad some eighteen or twenty miles from Morley.

At the time deceased was killed he was in good health, except that he was very hard of hearing, and about thirty-five years of age. His wages at this time were $ 60 a month. He left surviving him a wife and one child six years old, for whose use and benefit, the wife, as administratrix, is here suing.

There are keen contradictions in the testimony. The statement of the facts as made by us is taken largely from the testimony of witnesses adduced by plaintiff. This is done because a demurrer to the testimony was offered, and because the point here chiefly relied on for reversal is that there is not sufficient evidence to take the case to the jury; particularly, upon the point that deceased, when he was killed, was not engaged in the performing of such labors or duties as to bring him within the purview of the Federal Employers' Liability Act.

While upon the law applicable to such a contention, present defendant's negligence, the countervailing testimony as to the manner in which deceased lost his life is scarcely important, except as a matter of...