Glidewwell v. Quincy, O. & K. C. R. Co.

• Decision Date: 05 December 1921
• Docket Number: No. 13959.,13959.
• Court: Missouri Court of Appeals
• Parties: GLIDEWELL v. QUINCY, O. & K. C. R. CO.

236 S.W. 677

208 Mo. App. 372

GLIDEWELL v. QUINCY, O. & K. C. R. CO.

No. 13959.

Kansas City Court of Appeals. Missouri.

December 5, 1921.

Rehearing Denied January 9, 1922.

Appeal from Circuit Court, Sullivan County; Fred Lamb, Judge.

Action by Simon Glidewell against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. W. Clapp and D. M. Wilson, both of Milan, and J. G. Trimble, of St. Joseph, for appellant.

E. B. Fields, of Browning, and J. M. Wattenbarger, of Kirksville, for respondent.

BLAND, J.

This is an action for personal injuries brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). Plaintiff recovered a verdict and judgment in the sum of $4,000, and defendant has appealed. This is the second appeal in the case. See Glidewell v. Q., O. & K. C. R. R. Co., 204 S. W. 37.

On January 31, 1916, plaintiff was in the employ of the defendant as a blacksmith at its roundhouse located at Milan, Mo. On that day plaintiff was engaged in shortening a heavy piece of iron called a drawbar, which weighed about 200 pounds, and was used to connect one of defendant's engines and tender. The shortening of the drawbar was finished, and plaintiff and another workman were carrying the same from the roundhouse by order of plaintiff's subforeman, Hall. Plaintiff had hold of the front end of the bar, with his back in the direction in which he was going. After plaintiff had taken a few steps, not seeing in the direction in which he was going, he stepped on a piece of scrap iron that had been thrown in the passage, causing him to stumble against a piece of smokestack, which struck him in the back, and the drawbar caught in his stomach. When he fell plaintiff caught his arm on the smokestack, but did not strike the floor. He got up with the drawbar and proceeded out of the roundhouse and laid it down. Through the assistance of his helper plaintiff was taken to the depot suffering with pain in his back and the back of his head. He was sent home from the station in a buggy.

The blacksmith shop consisted of one large room, containing four forges, anvils, and other appliances used in iron work. About 25 men were employed there. Plaintiff was in charge of one of the forges. The shop had two large doors on the west side and a smaller one in one of the larger doors. A standard gauge railroad track entered the shop though these doors and extended beyond plaintiff's forge, which was the middle of the shop. The usual way of passing in and out of the blacksmith shop was along the railroad track and through the small door. Another workman was cutting up a smokestack on the railroad track, obstructing the regular passage, which required plaintiff to walk along the north side of the railroad between the track and his forge and the clamp of his subforeman, Hall. This passageway was about 2 feet in width. At the clamp there was a pile of scrap iron. When plaintiff reached this point he tripped over the scrap iron and fell against a section of the smokestack which protruded over the north side of the railroad track. The drawbar upon which plaintiff was working at the time of his injury belonged to engine No. 12 of the defendant. The evidence shows that engine No. 12 was used by the defendant in its passenger service from Milan, Mo., to Quincy, Ill. To quote the evidence in regard to this matter:

"Q. What was that engine used for? A. Passenger service.

"Q. From where to where? A. Prom Milan to Quincy."

It is insisted by the defendant that the court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence at the close of all the evidence, for the reason that plaintiff was not engage in the furtherance of interstate commerce at the time of his injury, and he, having brought his suit under the federal Employers' Liability Act, could not recover on evidence showing liability, if any, under the common law of Missouri.

We think there is no merit in this contention. We construe the evidence in reference to the matter to be that the engine, a part of which plaintiff was working upon, was devoted exclusively to interstate commerce, being used in the passenger service from Milan, Mo., to Quincy, Ill. The plain inference from the evidence is that the engine was permanently assigned to this work between these points. Defendant contends:

"That there was no proof as to how long engine No. 12 had been out of service or when it returned to service or whether it was engaged in interstate commerce afterwards. There was no proof the drawbar was afterwards used on engine No. 12 or in some other engine or used at all." "Repairs were being made in the shop and not on the engine while it was waiting on the track to go upon an interstate trip."

It is true that there was no evidence as to what use the engine was put to after it was repaired or whether the drawbar was put back into the engine. However, the evidence shows that this drawbar belonged to the engine, and that the engine was assigned to the work of hauling passengers between Milan, Mo., and Quincy, We think there is no question but that plaintiff was engaged in the furtherance of interstate commerce in repairing part of this engine. He was making this instrumentality of interstate commerce fit for the uses intended; that is, commerce between the states of Missouri and Illinois. Minneapolis ex. St. Louis R. R. v. Winters, 242 U. S. 353, 333. 37 Sup. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54; Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146, 33 Sup. Ct. 348, 57 L. Ed. 1125, Ann. Cas. 19140, 153.

We fail to see what difference it would make whether the work was being done in a blacksmith shop or while the engine was standing upon the track waiting to make an interstate run. It would make no difference where the work was being performed. The place of the doing of the work was certainly not the test, but the character of the work being done; whether the wort was being done in direct furtherance of interstate commerce or work so closely connected with interstate traffic as necessarily to become a part thereof; this is the test to be applied. Manes v. St. Louis-San Francisco ay. Co., 205 Mo. 300, 220 S. W. 14, 16; Shanks v. Railroad, 239 U. S. 556, 558, 38 Sup. Ct. 188, 80 L. Ed. 436, L. R. A. 1916C, 797; Pedersen v. Railroad., supra; Chicago, Burlington & Quincy Railroad v. Harrington, 241 U. S. 177, 33 Sup. et 517, 60 L. Ed. 941.

It is insisted that the demurrer to the evidence should have been sustained for the reason that there was no negligence shown. We think there is no merit in this contention. The petition alleges that plaintiff "stepped on some scrap iron, which defendant, its agents, servants, and employees had negligently and carelessly placed and permitted to be and remain in said passageway." The record shows by plain inference that the nature of the work being done on the forges and other appliances for iron work in the shop was such that it was practically impossible to prevent scrap iron from falling upon the floor around these instrumentalities. The evidence shows that there is "most always more than one" piece of scrap iron along the temporary passageway that plaintiff was required to take in carrying out the drawbar on account of the fact that there were forges, clamps, etc., along the north side and adjacent to this temporary passageway. However, there is no evidence that the scrap iron was permitted to fall in the regular passageway between the railroad tracks. This passageway was not immediately adjacent to these forges, etc. There was no reason why there should be any scrap iron in the regular passageway, and the clear inference from the testimony Is that there was none.

However, the record shows that plaintiff tripped over a piece of the scrap iron that composed the pile at the base of Subforeman Hall's forge. The clear inference is that this scrap iron fell from Hall's clamp; that Hall was responsible for its being there; and that it remained there from Saturday's work until Monday morning. It was a few hours after the...