Garrison v. Thompson

• Decision Date: 02 May 1939
• Docket Number: 35598
• Parties: S. A. Garrison v. Guy A. Thompson and L. W. Baldwin, Trustees of the Missouri Pacific Railroad Company, Appellants
• Court: Missouri Supreme Court

127 S.W.2d 649

344 Mo. 579

S. A. Garrison v. Guy A. Thompson and L. W. Baldwin, Trustees of the Missouri Pacific Railroad Company, Appellants

No. 35598

Supreme Court of Missouri

May 2, 1939

Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.

Action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., by S. A. Garrison against Guy A. Thompson and L W. Baldwin, trustees of the Missouri Pacific Railroad Company, for injuries sustained by the plaintiff. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment reversed.

Thomas J. Cole, L. J. Bishop and D. C. Chastain for appellants.

(1) The court erred in submitting the case to the jury under the Federal Employers' Liability Act because the plaintiff was not engaged in interstate commerce. Fenstermacher v C., R. I. & P. Ry. Co., 309 Mo. 475, 274 S.W. 718 certiorari denied 269 U.S. 576; Sailor v. Mo. Pac. Ry Co., 323 Mo. 396, 18 S.W.2d 82; Aldridge v. Wabash Ry. Co., 335 Mo. 588, 73 S.W.2d 401; Stogsdill v. St. L.-S. F. Ry. Co., 337 Mo. 126, 85 S.W.2d 447; Drew v. Mo. Pac. Ry. Co., 340 Mo. 321, 100 S.W.2d 516; Clevinger v. St. L.-S. F. Ry. Co., 109 S.W.2d 369, certiorari denied 302 U.S. 760; Harris v. Mo. Pac. Ry. Co., 114 S.W.2d 988; Siegel v. M. K. & T. Ry. Co., 119 S.W.2d 376; Shanks v. Delaware, L. & W. Ry. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436; Chicago, B. & Q. Ry. Co. v. Harrington, 241 U.S. 177, 36 S.Ct. 517, 60 L.Ed. 941; Delaware, L. & W. Ry. Co. v. Yurkonis, 238 U.S. 439, 35 S.Ct. 902, 59 L.Ed. 1397; Chicago & N.W. Ry. Co. v. Bolle, 284 U.S. 74, 52 S.Ct. 59, 76 L.Ed. 173; Chicago & E. Ill. Ry. Co. v. Ind. Comm. of Ill., 284 U.S. 296, 52 S.Ct. 151, 76 L.Ed. 304. (2) The court erred in giving Instruction 1 on the part of the plaintiff because: (a) The instruction authorized a recovery in every case for defects in equipment. It is erroneous in that respect and is not based upon any evidence. State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645. (b) The finding of the facts concerning the character of the work the plaintiff was doing did not make him engaged in interstate commerce. Authorities under Point (1). (c) It allowed a recovery on an inference of negligence. The evidence showed the cause of the accident and a res ipsa loquitur case was not made. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693; Sabol v. St. Louis Cooperage Co., 313 Mo. 527, 282 S.W. 425; Williams v. St. L.-S. F. Ry. Co., 337 Mo. 667, 85 S.W.2d 624; Conduitt v. Trenton G. & E. Co., 326 Mo. 133, 31 S.W.2d 21; Glasco Elec. Co. v. Union E. L. & P. Co., 332 Mo. 1079, 61 S.W.2d 955; Powell v. St. J. Ry., L., H. & P. Co., 336 Mo. 1016, 81 S.W.2d 957; Sanders v. Carthage, 330 Mo. 844, 51 S.W.2d 529; Grindstaff v. Goldberg & Sons Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702; Tayer v. New York Ice Machinery Corp., 119 S.W.2d 240; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Hart v. Emery, Bird, Thayer D. G. Co., 118 S.W.2d 509; Norfolk & W. Ry. Co. v. Hall, 49 F.2d 692.

Clarence C. Chilcott, Earl H. Bowles and Will H. Hargus for respondent.

(1) The court properly submitted the question of plaintiff's employment in interstate commerce to the jury. (a) Sailor v. Mo. Pac., 323 Mo. 396, 18 S.W.2d 82; Morrison v. C., M. & St. P., 103 Wash. 650, 175 P. 325; Arizona Eastern Railroad Co. v. Head, 26 Ariz. 137, 222 P. 1041; Pedersen v. D. L. & W. Ry. Co., 33 S.Ct. 648, 57 L.Ed. 1125, 229 U.S. 146; Manes v. St. L. & S. F. Ry. Co., 220 S.W. 17; P. & R. Ry. Co. v. Di Donato, 41 S.Ct. 516, 256 U.S. 327; Holmberg v. L. S. & M. S., 155 N.W. 507; Ohio Valley Elec. Co. v. Brumfield's Admr., 203 S.W. 544; Prink v. L. P. & W. Ry. Co., 279 P. 1118; Industrial Acc. Comm. of Cal. v. Payne, 42 S.Ct. 491, 259 U.S. 182; Howard v. M. & O., 335 Mo. 295, 73 S.W.2d 275; Warren v. Jackson, 204 Ill.App. 582; Pipal v. Grand Trunk Western Ry. Co., 173 N.E. 374; Berry v. St. L.-S. F. Ry. Co., 324 Mo. 775, 26 S.W. 988; Kalashian v. Hines, 177 N.W. 603; McGaughey v. Hines, 235 S.W. 742; Makino v. S. P. & S. Ry. Co., 63 P.2d 1083; Central Railroad of N. J. v. Monahan, 11 F.2d 212; Reed v. Dickinson, 169 N.W. 674; S. A. L. v. Hackney, 115 So. 873; L. & N. v. Brandenberg, 270 S.W. 2; L. & N. v. Williams, 194 S.W. 921; Grand Trunk W. Ry. v. Thrift, 115 N.E. 687; Scott v. Virginian Ry. Co., 184 S.E. 559; Sweany v. Wabash, 80 S.W.2d 219; Hines v. Industrial Comm., 129 N.E. 175; K. C. S. v. Leinen, 223 S.W. 2; C.P. Ry. Co. v. Thompson, 232 F. 354; St. J. & G. I. v. United States, 232 F. 352. (b) The fact that several employees instead of one are required to act in sequence in accomplishing an immediate object is immaterial. C. R. R. of N. J. v. Monahan, 11 F.2d 212; K. C. S. v. Martin, 262 F. 241; Howard v. M. & O., 335 Mo. 295, 73 S.W.2d 275; Probus v. I. C., 203 S.W. 862; Coons v. L. & W., 215 S.W. 947; Kusturin v. C. & A., 122 N.E. 516; Crysel v. T. & P., 152 So. 376; C.P. v. Thompson, 232 F. 354; Manes v. St. L. & S. F. Ry. Co., 220 S.W. 17; Berry v. St. L. & S. F. Ry. Co., 26 S.W.2d 993; P. B. & W. Ry. Co. v. Smith, 103 A. 945, 39 S.Ct. 397; C. & O. v. Russo, 163 N.E. 285; Browns' Admr. v. N. & W., 12 F.2d 319; Milburn v. C. M. & St. P., 56 S.W.2d 80; So. Ry. v. M'Guin, 240 F. 650. (c) The intention at the inception of the work characterizes it until there is a definite change. A. C. L. v. Tomlinson, 94 S.E. 909; N. Y. C. v. Slater, 23 F.2d 777; G. T. Western v. Boylen, 81 F.2d 92; So. Ry. v. M'Guin, 240 F. 650. (d) The removal of spent material comes within the act. Miller v. C. Railroad of N. J., 58 F.2d 638; P. B. & W. Ry. Co. v. McConnell, 228 F. 263; Probus v. L. & N., 203 S.W. 862; Coons v. L. & N., 215 S.W. 947; Ohio Valley Elec. Co. v. Brumfield, 203 S.W. 544. (e) Stoppages and lay-overs are immaterial in determining the interstate character of the instrumentalities. Jonas v. Mo. Pac., 48 S.W.2d 123; Texas v. Anderson, Clayton & Co., 92 F.2d 104; Pipal v. G. T. W., 173 N.E. 374; Berry v. St. L.-S. F. Ry. Co., 26 S.W.2d 993. (2) The court did not err in giving plaintiff's Instruction 3. Gila Valley G. & N. Railroad Co. v. Hall, 232 U.S. 94, 34 S.Ct. 231; McIntyre v. St. L. & S. F. Ry. Co., 227 S.W. 1047; Oglesby v. St. L.-S. F. Ry. Co., 1 S.W.2d 178; Cochran v. Pittsburgh & L. E. Ry. Co., 31 F.2d 769. (3) The court did not err in refusing to give Instructions C, D, G, J and K. Payne v. Reed, 59 S.W.2d 47; McCloskey v. Koplar, 46 S.W.2d 557; Harke v. Haase, 75 S.W.2d 1003.

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

OPINION

BRADLEY, Commissioner.

This is an action for damages under the Federal Employers' Liability Act, 45 U.S.C. A., Sections 51 et seq. Plaintiff, upon a jury trial, obtained a judgment for $ 10,000, and defendants appealed.

Error is assigned on the refusal of defendants' demurrer to the evidence at the close of the whole case, on given instructions given for plaintiff, and on an alleged excessive verdict.

July 1, 1935, defendants entered into a contract with Crane & Byrd, whereby 42130 water pocket ties were to be driven into the roadbed at designated places between Archie in Cass County and Jasper in Jasper County. These ties were to be driven into the roadbed at the ends of the track ties and at places along the way called "water pockets." The purpose was to reinforce and strengthen the roadbed where menaced by water. Defendants were to furnish and to distribute the ties to the designated places. The ties were shipped from Louisiana and Arkansas. At a point near Boston, in Barton County, a surplus of 1427 ties were distributed. There was a shortage of these ties near Butler, in Bates County, and defendants moved the 1427 from near Boston to the vicinity of Butler, and they were there distributed and driven into the roadbed. Plaintiff was injured in the second of the several movements of these ties in getting them from the right of way near Boston to the places where used, and into the roadbed.

The 1427 ties made four carloads, and the cars, into which they were loaded, were set at Boston on September 13, 1935. The ties were picked up from the right of way by three section crews and transported to Boston by means of motorcars and what is called push cars. The ties were loaded crosswise on the push cars and about thirty ties made a load. The motorcars pulled the push cars. September 14, 1935, plaintiff, a member of a section crew, was engaged with others, in picking up these ties from the right of way and transporting them to Boston, to be there loaded for shipment to the places where they would be used. The crew, with which plaintiff was working, was going north into Boston with a load of ties on a push car which was pulled by a motorcar. All members and the foreman were riding on the motorcar. Plaintiff sat in front on the right side seat. Other members of the crew sat on the same seat and to his rear. The foreman sat in front on the left side seat, and had control of the car. They were traveling about twenty-five miles per hour and slightly downgrade when a tie fell from the push car, which caused the front wheels of both cars to jump the track. Plaintiff was thrown forward and in front of the motorcar, resulting in the injuries complained of.

Two carloads of the 1427 ties were loaded at Boston on September 14, 1935, day plaintiff was injured, and were moved by train to Nevada on September 16th. The other two carloads were loaded at Boston on September 18th, and were moved to Nevada on September 19th. On same day, the 19th, the four cars were moved to Butler and placed on a siding, and there remained until September 21st. On the last mentioned date, the four cars were picked up by a work train and were distributed to the places where they were to be used. September 24th, Crane...