Fenstermacher v. Chicago, Rock Island & Pacific Railway Company

• Decision Date: 14 July 1925
• Docket Number: 24261
• Citation: 274 S.W. 718,309 Mo. 475
• Parties: EDMOND FENSTERMACHER v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

274 S.W. 718

309 Mo. 475

EDMOND FENSTERMACHER v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 24261

Supreme Court of Missouri

July 14, 1925

Motion for Rehearing Denied July 2, 1925.

Respondent's Motion to Modify Opinion Sustained July 14, 1925.

Appeal from Platte Circuit Court; Hon. A. M. Tibbels Judge; In this case an application to the Supreme Court of the United States for a writ of certiorari to the Supreme Court of Missouri was denied October 26, 1925.

Reversed (without prejudice).

Luther Burns and John E. Dolman for appellant.

Plaintiff was not employed in interstate commerce, nor in work so closely related to interstate commerce as to become a part of it, nor was defendant engaged in interstate commerce at the time of the alleged injury. The telegraph poles had not yet become instruments of interstate commerce, and the transportation by the defendant of the poles to Trenton, was wholly within the State. Plaintiff therefore cannot recover and the court erred in refusing defendant's peremptory instruction as requested. C., B. & Q. Ry. Co. v Harrington, 241 U.S. 177, 60 L.Ed. 941; Shanks v. Delaware L. & W. Railroad, 239 U.S. 556; Delaware Railroad Co. v. Yurkonis, 238 U.S. 439, 59 L.Ed. 1397; Dupuis v. L. Ry. & Nav. Co., 99 So. 709; Nash v. Ry. Co., 242 U.S. 620, 61 L.Ed. 531; B. & O. Ry. Co. v. Branson, 242 U.S. 624, 61 L.Ed. 534; Ill. Cent. Ry. Co. v. Cousins, 241 U.S. 641; Schauffele v. Director General, 276 F. 115; M. & St. L. Ry. v. Winters, 242 U.S. 353, 61 L.Ed. 358; I. C. Ry. Co. v. Behrens, 233 U.S. 473; 58 L.Ed. 1051; Pederson v. Ry. Co., 229 U.S. 146, 57 L.Ed. 1125; St. L. & S. F. Ry. Co. v. Seale, 229 U.S. 156, 57 L.Ed. 1129. The test of the work is not the instrument upon which it is performed. Industrial Com. Co. v. Davis, 259 U.S. 182, 186, 77 L.Ed. 888; Chicago K. & S. Ry. Co. v. Kindle-Parker, 234 F. 1, 246 U.S. 657, 62 L.Ed. 925.

James H. Hull, Platt Hubbell and Geo. H. Hubbell for respondent.

Respondent was injured while assisting in the work of loading some telegraph poles for the immediate repair of the telegraph line which had been used and was, then and there, in use, as an instrumentality of interstate commerce and his right of recovery is governed by the Federal Employers Liability Act. Coal & Coke Ry. Co. v. Deal, 231 F. 606, 145 C. C. A. 490, 215 F. 285, 232 F. 1020, 245 U.S. 681, 62 L.Ed. 544; Yarde v. Hines, 209 Mo.App. 547, 24 A. L. R. 643; Williams v. Schaff, 282 Mo. 497; 1 Robt. Fed. Liab. Carr., sec. 494; Brier v. Ry. Co., 183 Iowa 1212; Collins v. Mich. Cent. R. Co., 193 Mich. 303; Ross v. Sheldon, 176 Iowa 618, L. R. A. 1915 C, 59; L. & N. Ry. Co. v. Mullins' Admx., 181 Ky. 148; Brewer v. Mo. Pacific, 259 S.W. 827; B. & O. Ry. Co. v. Burtch 44 S.Ct. 165, 43 S.Ct. 360; Alexander v. G. N. Ry. Co., 51 Mont. 565, 38 S.Ct. 239; Illinois Cent. Ry. Co. v. Probus, 187 Ky. 118, L. R. A. 1918 E. 863; Coons v. L. & N. Ry. Co., 185 Ky. 741; Lammars v. C. G. W. R. Co., 187 Iowa 1277; Holmberg v. Ry. Co., 188 Mich. 605; K. C. So. Ry. Co. v. Martin, 262 F. 241; Hines v. Industrial Comm., 129 N.E. 175; So. Pac. Co. v. Indust. Acc. Com. Cal., 251 U.S. 259; Hunt v. C. B. & Q Ry. Co., 259 S.W. 481; Armbruster v. C. R. I. & P. Ry. Co., 166 Iowa 155; 1 Rob. Fed. Liab. Carr., sec. 517, p. 900; Erie Ry. Co. v. Collins, 259 F. 172, 245 F. 811, 253 U.S. 77; Pedersen v. Delaware Ry. Co., 57 L.Ed. 1125, Ann. Cas. 1914 C, 153; L. & N. Ry. Co. v. Parker, 242 U.S. 13; Southern Ry. Co. v. M'Guin, 240 F. 649, 244 U.S. 654, 61 L.Ed. 1373; Erie Ry. Co. v. Szary, 253 U.S. 86; Mondou v. Ry. Co., 223 U.S. 51, 56 L.Ed. 327, 38 L. R. A. (N. S.) 44; 1 Rob. Fed. Liab. Carr., secs. 448, 488, 490; Industrial Acc. Comm. v. Payne, 259 U.S. 182, 67 L.Ed. 888; L. & N. Ry. Co. v. Netherton, 175 Ky. 159; Slatinka v. U.S. Ry. Admin., 24 A. L. R. 608; Eley v. C. G. W. Ry. Co., 186 Iowa 312; Colasurdo v. Cent. Ry. Co., 180 F. 832, 192 F. 901; Laughlin v. Mo. Pacific, 297 Mo. 345.

OPINION

Blair, J.

Action by an employee of defendant for personal injuries sustained by him while assisting in handling a heavy telegraph pole at Altamont, Missouri. The action was brought under the Federal Employers' Liability Act. Trial below resulted in a verdict for plaintiff in the sum of $ 25,000 and defendant has appealed.

The assignments of error made by defendant are, first, that the trial court should have given defendant's instruction in the nature of a demurrer to the evidence, because the petition is based solely upon the Federal Employers' Liability Act and the evidence fails to show facts permitting recovery by plaintiff under said act; second, because the evidence shows that plaintiff assumed the risk, which resulted in his injury; and, third, because the court erred in overruling defendant's motion for new trial on account of the excessiveness of the verdict. We will address ourselves to these propositions only.

The defendant was operating a line of railroad in Missouri, Iowa and other states, and was engaged in both interstate and intrastate commerce. In connection with a telegraph company and under an arrangement not here important, defendant operated a telegraph line, as an appurtenance to its railroad, which it was its duty to keep in repair. This telegraph line was used in facilitating and protecting the movement of trains engaged in interstate commerce.

For the purpose of considering whether plaintiff was engaged in interstate commerce at the time he was injured, we will assume, without so deciding, that the evidence supports the allegations of the petition touching the negligence of defendant. Thus will be eliminated a recital of facts which do not go to the question to be first determined.

It became necessary for defendant to use two 45-foot telegraph poles in repairing its telegraph line at Trenton, Missouri. Poles of that size were stored at Altamont with poles of different sizes. Plaintiff was employed as a member of the bridge-and-building gang, which was then engaged in work at Altamont. He, with others, was summoned to assist in getting the desired poles out of this pile of telegraph poles, stored on a rack near the railroad track, and to help in placing such poles upon a flat car set at that point for the purpose. It became necessary to move other poles in order to get to the poles desired for use at Trenton. While he was engaged in helping move one of these poles, plaintiff was injured. Details are unnecessary. The two 45-foot poles were finally loaded upon the flat car and taken to Trenton, where they were unloaded and within two or three days thereafter were used by defendant in repairing said telegraph line. The only connection plaintiff had with the repair of the telegraph line was the work he was doing in helping to load the poles at the time he was injured. Does such state of facts permit the maintenance of the suit by plaintiff under the Federal Employers' Liability Act?

Plaintiff was not directly employed in interstate commerce at the time he was injured. The question is whether his act in helping to load the poles upon the flat car, to be thereafter taken by others to another place and there to be handled by other persons in repairing a facility used in interstate commerce, was work so closely related to or connected with interstate commerce as to be practically a part of it? If so, he can maintain his action under the Federal Employers' Liability Act; otherwise, he cannot.

Defendant cites and relies upon Chic., Burlington & Q. Railroad v. Harrington, 241 U.S. 177, 180, 60 L.Ed. 941, 942. There the railroad was insisting that the deceased was engaged in interstate commerce and that plaintiff could not maintain her action brought under the Missouri law for that reason. The contention was overruled. Deceased was a member of a switching crew which was moving loaded coal cars from a storage track to a coal shed in the same city, where such coal was to be placed in bins or chutes and supplied as needed to locomotives, some of which were engaged, or about to be engaged, in interstate commerce. The switching movement there, as the train movement here in hauling the telegraph poles to Trenton, was an intrastate movement. The contention there, as here, was that the work deceased was doing was so closely connected with interstate commerce as to be a part of it. This contention was denied by the United States Supreme Court.

We think the work being done by plaintiff in the case before us was not as closely connected with interstate commerce as was that of deceased in the Harrington case. Harrington was a member of the switching crew which was moving the coal. Plaintiff here was not a member of the train crew. He is in the same position a laborer would have been who had helped shovel the coal into the coal car just before Harrington's crew started to move the car, if the car had been loaded in such manner. Plaintiff's membership in the bridge-and-building gang does not affect the situation in any way. He was in the same position as if he had not been previously employed by defendant in any capacity and had been specially employed to assist in loading the telegraph poles upon the flat car. Under the decisions, such employment would have enabled him to maintain the action under the Federal Employers' Liability Act, if his work at the time of his injury was so closely connected with interstate commerce as to be a part of it.

Plaintiff undertakes to distinguish the Harrington case from the case at bar. Counsel urge that there is a distinction between cars and locomotives, on the one hand, and facilities, such as tracks, bridges, telegraph lines, semaphores, etc., on the other. It is true that locomotives and cars may, at one time be engaged in interstate commerce and, at other times, in...