Drew v. Missouri Pac. R. Co.

• Citation: 100 S.W.2d 516,340 Mo. 321
• Decision Date: 05 January 1937
• Docket Number: 33903
• Parties: Lida Slee Drew, Administratrix of the Estate of Hugh Slee, v. Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

100 S.W.2d 516

340 Mo. 321

Lida Slee Drew, Administratrix of the Estate of Hugh Slee, v. Missouri Pacific Railroad Company, a Corporation, Appellant

No. 33903

Supreme Court of Missouri

January 5, 1937

Rehearing Denied Dee. 14, 1936.

Motion to Transfer to Court in Banc Denied January 5, 1937.

Appeal from Lafayette Circuit Court; Hon. Charles Lyons Judge.

Reversed.

Thos J. Cole, Henry C. Chiles and W. W. Graves, Jr., for appellant.

(1) The court erred in submitting this case to the jury because the deceased at the time of the accident was not engaged in interstate transportation. Chicago, B. & Q. Railroad Co. v. Harrington, 241 U.S. 177, 36 S.Ct. 517; Chicago & E. I. Railroad Co. v. Industrial Comm., 284 U.S. 296, 52 S.Ct. 151; Chicago & N.W. Ry. Co. v. Bolle, 284 U.S. 74, 52 S.Ct. 59; Stogdill v. Ry. Co., 85 S.W.2d 447; Boles v. Hines, 226 S.W. 272; Capps v. Railroad Co., 101 S.E. 216; Phillips v. Ry. Co., 225 N.W. 106; Fears v. Railroad Co., 86 N.H. 206, 166 A. 283; Gallagher v. N. Y. Cent. Railroad Co., 188 A.D. 88, 167 N.Y.S. 480, affirmed 222 N.Y. 649, 119 N.E. 1044, certiorari denied, 248 U.S. 559, 39 S.Ct. 6; Phillips v. B. & O. Railroad Co., 287 Pa. 390, 135 A. 102; Kelly v. Railroad Co., 238 F. 95. (2) The court erred in submitting this case to the jury because the evidence was insufficient to charge defendant with any negligence in failing to provide the deceased a reasonably safe place in which to work. Byrd v. Railroad Co., 46 S.W.2d 221; Hamilton v. Ry. Co., 250 Mo. 714; Sexton v. Met. St. Ry. Co., 245 Mo. 255; Boggess v. K. C. Rys. Co., 207 Mo.App. 1. (3) The court erred in refusing to give defendant's instructions A, E and 6 because under the evidence deceased was not engaged in interstate transportation. Authorities under Point (1). (4) The court erred in refusing to give defendant's Instruction E because the evidence did not show that the injury was a result of any negligence on the part of the defendant. Authorities under Point (2). (5) The verdict of the jury was excessive and was the result of passion and prejudice against the defendant.

C. S. Walden, Raymond E. Martin, Horace Blackwell and Warren Sherman for respondent.

(1) The court properly submitted the case to the jury. There was testimony to support the allegations of the petition and which showed that at the time deceased received the injuries which resulted in his death he was engaged in interstate transportation, or in work so closely related to it, as to be practically a part of it. Shanks v. Railroad Co., 239 U.S. 556, 60 L.Ed. 436; C. B. & Q. Railroad Co. v. Harrington, 241 U.S. 177, 60 L.Ed. 941; Chicago & E. Ill. Ry. Co. v. Industrial Comm., 284 U.S. 296, 76 L.Ed. 304; Pedersen v. Railroad Co., 229 U.S. 246, 57 L.Ed. 1125; Southern Pac. Railroad Co. v. Indus. Comm., 251 U.S. 659, 64 L.Ed. 258; Kinzell v. Ry. Co., 63 L.Ed. 893; Southern Ry. Co. v. Puckett, 61 L.Ed. 1321, 244 U.S. 571. (a) It is well established under the decisions of this court and of the Supreme and Federal courts, and courts of other states that where an employee is injured while engaged in work upon or directly in connection with an instrumentality which itself is being used in interstate transportation, such as tracks, roadbeds, bridges, or locomotive cars embarked upon, or immediately about to embark upon the transportation of interstate commerce, machinery, water cranes, insulators or main electric cables of interstate railway carriers, the act applies; and also that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such transportation as to be in practice and in legal contemplation a part of interstate transportation. Pedersen v. Railroad Co., 229 U.S. 246, 57 L.Ed. 1125; Southern Pac. Railroad Co. v. Indus. Comm., 251 U.S. 659, 64 L.Ed. 258; Kinzell v. Ry. Co., 63 L.Ed. 893; Southern Ry. Co. v. Puckett, 61 L.Ed. 1321, 244 U.S. 571; Allen v. Railroad Co., 53 S.W.2d 884; Owens v. Frisco, 46 S.W.2d 930; Newkirk v. Pryor, 183 S.W. 683; Stewart v. L. & N. Ry. Co., 269 S.W. 555; Holley v. Valley Elec. Ry. Co., 114 S.E. 572; Quirk v. Erie Ry. Co., 139 N.E. 556; Freeman v. Fraser, 268 P. 538; Sells v. Grand Trunk Ry. Co., 206 Ill.App. 45; Miller v. Railroad Co., 58 F.2d 637. (2) The court properly submitted the case to the jury. The evidence and the inferences to be drawn therefrom were sufficient to establish the fact that the defendant company negligently failed to exercise reasonable care in maintaining its roadbed over which the deceased was required to travel in the performance of his duties, in a reasonably safe condition, so that in the discharge of his duties he could use the same. Lewis v. Railroad Co., 59 Mo. 495; Gibson v. Railroad Co., 46 Mo. 163; Burdict v. Mo. Pac. Ry., 123 Mo. 236; Hollenbeck v. Mo. Pac., 141 Mo. 97; Bird v. Railroad Co., 78 S.W.2d 389; Doyle v. St. L. Merc. B. Co., 31 S.W.2d 1010, certiorari denied, 75 L.Ed. 1435; Lock v. C. B. & Q. Railroad Co., 219 S.W. 919; B. & O. Railroad Co. v. Flechtner, 300 F. 319.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This action is under the Federal Employers' Liability Act (45 U.S.C. A., sec. 51 et seq.) to recover damages resulting from the death of Hugh Slee, an employee of defendant at the time of the accident. Plaintiff administratrix, the widow, remarried and was appointed administratrix after her remarriage. Deceased was in charge of the pump house of defendant at Lake City, in Jackson County, Missouri, and had been for some time and was struck by the pilot of one of defendant's westbound freight trains, a short distance west of the pump house, on November 7, 1930, about eleven A. M., and, from the injuries received died thereafter on November 15th. Deceased left surviving, so far as concerns this cause, the widow, plaintiff administratrix, and Stella, at the time, age twelve, Mary, age sixteen, and Roy Slee, age eighteen. The cause was tried to a jury. Verdict went for plaintiff in the sum of $ 9648. Motion for new trial was overruled and defendant appealed.

It is alleged that deceased, at the time he was injured, was engaged in the performance of his duties and was repairing and adjusting a water crane, an instrumentality used to supply water to trains, both in intrastate and interstate transportation. The negligence charged and submitted was: That defendant failed to exercise ordinary care to keep its right of way in a reasonably safe condition for the use of its employees, in that defendant negligently suffered and permitted a part of the right of way, which deceased was required to use in the performance of his duties, to become dangerous and unsafe, in that it permitted a piece of bailing wire or wire to become imbedded in the right of way in such a manner that deceased in passing over the right of way and roadbed tripped upon said wire causing him to be thrown in front of the approaching train.

The answer is: (1) A general denial; (2) plea of contributory negligence; (3) assumption of risk; and (4) a specific denial that deceased, at the time of his injury was engaged in interstate transportation or work so closely related thereto as to be practically a part thereof. Plaintiff replied by general denial.

Assignments, several in number, may be grouped as: On the refusal of defendant's peremptory request at the close of the whole case, and on an alleged excessive verdict. The first assignment, as stated by us, involves two questions, viz.: (1) Was deceased, at the time of his injury, engaged in interstate transportation or work so closely related thereto as to be practically a part thereof? and (2) was there substantial evidence tending to show that defendant was negligent in the manner charged and submitted?

The facts are about these: Defendant has two tracks at Lake City, which tracks run east and west. The north track is the main line and the south track is sometimes referred to as the passing track and sometimes as the Independence branch. Beginning on the east, and north of the tracks are the pump house, the watertank and the depot. These are rather close together, but the distance between is not important. South of the tracks and a short distance west of the pump house is the water crane. An exhaust pipe from the pump house passed through the west side thereof and three or four feet beyond, and then turned south and passed underground to the south side of the tracks, where it discharged. The water crane base, of concrete construction, was cubical in form and extended into the ground about five feet. One could enter this base and have room sufficient to perform whatever work was necessary to do therein in the way of repairs.

Defendant's counsel in their brief correctly state further pertinent facts as follows: "Early on the morning of the accident deceased went to the pump house, returning to his home about eight o'clock for his breakfast. He returned to the pump house between eight-thirty and nine o'clock and was accompanied by two of his married daughters, who were then living at his home, and who were going to put out the family washing at the pump house. According to the testimony of these two daughters, the deceased, shortly after he arrived at the pump house, went southwest across the tracks from the pump house to the water crane and removed a metal trapdoor which leads into the concrete base of the crane which (base) encloses the valves and mechanism of the crane; the deceased descended into the pit of the crane. According to the evidence he made several trips back and forth that morning prior to the accident, between the pump house and the water crane, and the daughters testified that they had gone over to the water crane several times while he was working and had handed him down tools...