Goss v. Kurn
| Decision Date | 05 February 1940 |
| Docket Number | 34028 |
| Citation | 193 So. 783,187 Miss. 679 |
| Court | Mississippi Supreme Court |
| Parties | GOSS v. KURN et al |
APPEAL from the circuit court of Lee county HON. CLAUDE F. CLAYTON Judge.
Suit by Tony Goss against J. M. Kurn and another, trustees of the St Louis-San Francisco Railway Company, for personal injuries. From an adverse judgment, plaintiff appeals. Reversed and remanded for a new trial.
Reversed and remanded.
Adam & Long, of Tupelo, for appellant.
There are several well-settled principles of law that govern this case, none of which are subject to question, and all of them have been repeatedly announced by the United States Supreme Court and other courts of the land.
The first is that in order for any plaintiff's case to be governed by the Federal Employers Liability Act and the decisions of the national court with respect thereto and not to be considered and governed by the laws of the State in which the accident occurred, it must affirmatively appear from the record that the carrier itself was a carrier of goods and was engaged at all times in interstate commerce.
It does not matter that it may at the same time be engaged in intrastate commerce but that the carrier at all times must be engaged in interstate commerce and that at the time of the injury the employee must also then and there be engaged in a task, which, from its nature, is a part of interstate commerce.
2 Roberts, Federal Liability of Carriers (2 Ed.), par. 702, p. 1310.
It is also well settled that it does not make any difference what the usual duties of the employee are nor what he had been doing just prior to the accident, nor what he expected to do after the accident. His status at the time of the accident as to being in interstate or intrastate commerce is governed entirely by the specific and separate task which the employee was engaged in at the time of the accident.
I. C. R. R. Co. v. Behrens, 58. L.Ed. 1051; Chicago, etc., R. R. Co. v. Harrington, 60 L.Ed. 941; Erie R. R. Co. v. Welsh, 61 L.Ed. 319; Chicago, etc., R. R. Co. v. Bolle, 76 L.Ed. 173.
The criterion which determines whether or not the employment is interstate or not is as follows: "Was the employee at the time of the injury engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?"
The above-quoted principle, after its first enunciation by the Supreme Court of the United States, has been repeatedly referred to and the word "transportation" has been singled out and elaborated upon and made the key word of this principle, as distinguished from "commerce, " so that any act in which an employee is engaged must be in furtherance of transportation as distinguished from the many other activities in and about a railroad yard.
Pedersen v. Delaware, etc., R. R. Co., 57 L.Ed. 1125; Del., etc., R. R. Co. v. Yurkonis, 59 L.Ed. 1397; Shanks v. Del., etc., R. R. Co., 60 L.Ed. 436; Chicago, etc., R. R. Co. v. Harrington, 60 L.Ed. 941; N.Y.C. R. R. Co. v. White, 61 L.Ed. 667; Accident Commission v. Davis, 66 L.Ed. 888; Chicago & N.W. R. Co. v. Bolle, 76 L.Ed. 173; N. Y., N. H. & H. R. R. Co. v. Bezue, 76 L.Ed. 370.
The burden of proof where the plaintiff bases his cause of action on the Federal Employers Liability Act is upon the plaintiff to show sufficient facts to bring the accident within the terms of the Federal Employers Liability Act, and the contrary is true that where the plaintiff's action is based upon State's statutes or laws and the defendant depends upon or contends that the Federal Employers Liability Act applies that the burden then is upon the defendant to prove facts sufficient to bring the transaction within the terms of the Federal Employers Liability Act.
2 Roberts on Carriers Liability, etc. (2 Ed.), par. 1018, p. 1960; Pa. R. R. Co. v. Knight, 41 L.Ed. 1136; Pittsburgh C. C. & St. Louis R. R. Co. v. Parker, 19 A.L.R. 759.
The party who asserts the affirmative of an issue has the burden of proving the facts relative thereto.
20 Am. Jur. 138-145, paragraphs 135-140; Cotheart v. Robinson, 8 L.Ed. 120; McCoy v. Rhodes, 13 L.Ed. 634; Roach v. Summers, 22 L.Ed. 252; Seitz v. Mitchell, 24 L.Ed. 179; U.S. v. Denver, etc., R. R. Co., 48 L.Ed. 106.
Neither the trial court or the Supreme Court will presume or take judicial knowledge of any facts to bring the case within the terms of the Federal Employers Liability Act, and unless sufficient facts are brought to the attention of the court through the testimony to bring the transaction within the terms of the Federal Employers Liability Act the trial court and all the courts through which the case proceeds will presume that the employment is intrastate instead of interstate in its nature.
2 Roberts, Federal Liability of Carriers (2 Ed.), par. 1017; Osborne v. Gray, 60 L.Ed. 865; Johnson v. So. Pac. R. R. Co., 49 A.L.R. 1323.
In the Shanks case, in 60 L.Ed. at page 436, the Supreme Court held that an employee in a machine shop, belonging to a railroad engaged in both interstate and intrastate transportation, hurt by some of the machinery therein, was not engaged in interstate commerce.
Erie R. R. Co. v. Welsh, 61 L.Ed. 319; Minn., etc., R. R. Co. v. Winters, 61 L.Ed. 358; Lehigh Valley R. R. Co. v. Barlow, 61 L.Ed. 1070; Industrial Accident Com. v. Davis, 66 L.Ed. 888; N. Y., etc., R. R. Co. v. Bezue, 72 L.Ed. 370.
We invite the court's attention to the following authorities, which we think hold with us, and are absolutely in point.
2 Roberts, Federal Liability of Carriers (2 Ed.), paragraphs 779, 780, pages 1493-1499; Galveston. H. & S. A. Ry. Co. v. Brewer, 2 S.W.2d 320; Dupuis v. La., 99 So. 709, 69 L.Ed. 1152; Sidell v. St. Louis-San Francisco Ry. Co., 18. S.W.2d 126; Y. & M. V. R. R. Co. v. Houston, 75 So. 690, 114 Miss. 888; So. Ry. Co. v. Maxwell, 117 Miss. 62; N. O. & N. E. R. R. Co. v. Beard, 90 So. 727, 128 Miss. 172; G. M. & N. R. R. Co. v. Myer, 110 So. 444, 145 Miss. 555.
We respectfully submit that the lower court erred in granting the peremptory instructions for the defendant and in holding that the doctrine of assumption of risk applied in this cause because it was an interstate transaction.
The only way that a variance between the proof and the charges of the declaration can be taken advantage of is by objection to the testimony when offered and that objection then must be on the grounds that it varies from the declaration.
True-Hixon Lbr. Co. v. McDonough, 123 So. 855, 154 Miss. 720; Cramer v. Strain, 145 So. 244, 169 Miss. 344; La. Oil Corp. v. Davis, 158 So. 792, 172 Miss. 126; Fatheree v. Griffin, 121 So. 119, 153 Miss. 570; Linten v. Skinners, 84 So. 800, 122 Miss. 613; Ala., etc., R. R. Co., v. Searles, 16 So. 255, 71 Miss. 744.
C. R. Bolton, of Tupelo, D. W. Houston, Sr. and Jr., of Aberdeen, and J. W. Jamison, of St. Louis, Mo., for appellees.
It is our position that the case is governed by the Federal Employers Liability Act because the appellant was an employee engaged in such service of appellee as would bring him under the act, and for this reason it is our view that the law as contained in the Federal Act is the law by which this case is to be considered, but yet we say that under the pleadings and facts in this case, the action of the court below in giving a peremptory instruction was correct, whether the federal law or the Mississippi law be applied as the right rule.
In the Pedersen case (Pedersen v. D. L. & W. R. Company, 57 L.Ed. 1125), the Supreme Court of the United States laid down the rule which has been followed as the leading case on this question. In that well-known case, the injured servant was engaged in carrying bolts to be used in repair of a bridge which was devoted to interstate commerce, and the court held that such was employment in interstate commerce and that the federal law applied, even though the servant was not at that time engaged in the actual repair of the bridge. The service in which he was engaged was a necessary incident to the repair of the bridge. In the same manner, we respectfully submit to the court that while the carrying of bolts to a bridge for use in the repair of it was employment in interstate commerce, in a like manner the carrying away of rails taken out of an interstate track was just as much employment in interstate commerce.
Erie R. R. Co. v. Winfield, 61 L.Ed. 1057; N.Y.C. R. R. Co. v. Marcone, 74 L.Ed. 892; B. & W. R. Co. v. McConnell, 142 C. C. A. 555, 228 F. 263.
The appellant failed to prove the case charged in his declaration.
The evidence failed to show negligence on the part of the defendant.
Batson-Haten Lbr. Co. v. Thames, 147 Miss. 794, 114 So. 25; Cobb Bros. Const. Co. v. Campbell, 176 Miss. 95, 170 So. 283; Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 162, 149 So. 792.
Whether under the Federal Act, or the state law, the servant assumes the usual and ordinary risk of the employment. The only exception is that if this be under the state law, the servant does not assume the risk due to the negligence of the master, as to which there is no proof in this record.
Argued orally by S. H. Long, for appellant, and by G. R. Bolton, for appellees.
The appellant was plaintiff in the court below. He brought suit against J. M. Kurn and John G. Lonsdale, trustees of the St. Louis-San Francisco Railway Company, for personal injuries sustained, as he contended, by strain from being required to lift rails, he having been previously injured, and the railroad company and the trustees aforesaid had knowledge of the prior injury and his inability to do heavy work, lifting, et cetera; and that, as a result, he sustained a permanent physical injury, for which he has asked damages in the sum of $ 3, 000.
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