Gray v. Kurn, 36130.

• Citation: 137 S.W.2d 558
• Decision Date: 06 March 1940
• Docket Number: No. 36130.,36130.
• Parties: J.P. GRAY v. JAMES M. KURN and JOHN G. LONSDALE, Trustees of St. Louis-San Francisco Railway Company, a Corporation, Appellants.
• Court: Missouri Supreme Court

137 S.W.2d 558 J.P. GRAY
v.
JAMES M. KURN and JOHN G. LONSDALE, Trustees of St. Louis-San Francisco Railway Company, a Corporation, Appellants. No. 36130. Supreme Court of Missouri. Division One, March 6, 1940.

[137 S.W.2d 560]

Appeal from Douglas Circuit Court. — Hon. Robert L. Gideon, Judge.

AFFIRMED.

J.W. Jamison and Mann, Mann & Miller for appellants.

(1) Respondent was not, when injured, engaged in interstate transportation and, therefore, has no cause of action under the Federal Employers' Liability Act, which he invokes. Sailor v. Mo. Pac. Ry. Co., 322 Mo. 396, 18 S.W. (2d) 83; Aldridge v. Wab. Ry. Co., 335 Mo. 588, 73 S.W. (2d) 404; Clevinger v. St. L.-S.F. Ry. Co., 341 Mo. 797, 109 S.W. (2d) 372; Fenstermacher v. C., R.I. & P. Ry. Co., 309 Mo. 475, 274 S.W. 721; Morrison v. C., M. & St. P. Ry. Co., 103 Wash. 650, 175 Pac. 326; Arizona, Eastern Railroad Co. v. Head, 26 Ariz. 137, 222 Pac. 1041; Hudson & M. Railroad Co. v. Irio, 239 Fed. 855; Furferi v. Penn. Ry. Co., 180 Atl. 405. The question of whether an employee was engaged in intrastate or interstate transportation depends upon the work he was performing at the time of the injury, not upon the character of his last previous employment, or upon the character of that which he subsequently would have done but for the injury. Drew v. Mo. Pac. Ry. Co., 340 Mo. 321, 100 S.W. (2d) 518; Shanks v. Delaware, L. & W. Ry. Co., 239 U.S. 556, 60 L. Ed. 436; Chicago & N.W. Railroad Co. v. Bolle, 284 U.S. 74, 76 L. Ed. 173; Chicago & E.I. Ry. Co. v. Industrial Comm. of Ill., 284 U.S. 296, 76 L. Ed. 304; Chicago, B. & Q. Railroad Co. v. Harrington, 241 U.S. 177, 60 L. Ed. 941; Delaware L. & W. Railroad Co. v. Peck, 255 Fed. 261. The primary purpose of the work in which the employee is engaged governs, and the character of his employment is not to be determined by some purpose which is collateral or merely incidental to the primary purpose. Clevinger v. St. L.-S.F. Ry. Co., 341 Mo. 797, 109 S.W. (2d) 372; Chesapeake & O. Railroad Co. v. Rucker, 54 S.W. (2d) 646. (2) No actionable negligence on the part of the appellants was proven and the demurrer to the evidence should have been sustained. (a) One specific allegation of negligence alleged in respondent's petition was that the employees of appellants working inside the car, in attempting to open the door, negligently caused it to leave the track and fall from the car. Not only does the evidence wholly fail to support this allegation of negligence, but no instruction based upon it having been requested by respondent, it will be treated as abandoned. Nahorski v. St. Louis E.T. Ry. Co., 310 Mo. 227, 274 S.W. 1027; Crossno v. Term. Railway Assn., 328 Mo. 826, 41 S.W. (2d) 800; Wallace v. Burkart M. Co., 319 Mo. 52, 3 S.W. (2d) 390; Denkman v. Prudential F. Co., 289 S.W. 596. (b) Respondent is bound upon this appeal by his theory asserted at the trial. Pinnell v. St. L.-S.F. Ry. Co., 263 S.W. 186; Degonia v. St. Louis, I.M. & S. Ry. Co., 224 Mo. 588, 123 S.W. 807; O'Hara v. Laclede G.L. Co., 244 Mo. 403, 148 S.W. 884; Rath v. Knight, 55 S.W. (2d) 684. (c) Respondent's trial theory was that his injuries were proximately caused by the concurrence of two alleged acts of negligence, negligently starting the train before he had time to enter one of the cars, and that the track and rollers holding the door in place were defective, permitting the door to fall, and that neither without the concurrence of the other would have caused the injury. Under these circumstances a submissible case must be made as to both grounds of negligence and if there is a failure of proof as to either, respondent is not entitled to recover. Bonnarens v. Leads Belt Ry. Co., 309 Mo. 76, 273 S.W. 1047; Brainard v. Mo. Pac. Ry. Co., 319 Mo. 890, 5 S.W. (2d) 18 (d) The starting of the train before respondent got within one of the cars was not a proximate cause of his injury. A causal connection between the alleged negligent act and the injury must be established, and the injury must have been one reasonably to have been anticipated as a result of the negligent act. State ex rel. Lusk v. Ellison, 271 Mo. 473, 196 S.W. 1088; Wecker v. Grafeman McI. I.C. Co., 326 Mo. 451, 31 S.W. (2d) 977; Newhouse v. St. Louis D.B. & E. Co., 326 Mo. 1047, 33 S.W. (2d) 936; American Brewing Assn. v. Talbot, 141 Mo. 683; Ilgenfritz v. Mo. P. & L. Co., 340 Mo. 648, 101 S.W. 727. (e) Respondent's evidence went no further than to show the condition of the track and roller after the accident. It was not shown that appellants knew of this condition, or that it had existed for such length of time as to charge them with knowledge, and to give them a reasonable opportunity thereafter to repair it, or that a reasonable inspection of the car would have disclosed the defect. Haggard v. Drew Coal Co., 200 S.W. 1074; Manche v. St. Louis, B. & B. Co., 262 S.W. 1023; Wilson v. Mo. Pac. Ry. Co., 319 Mo. 308, 5 S.W. (2d) 21; Williams v. St. L.-S.F. Ry. Co., 119 Mo. 316; Winslow v. M.K. & T. Ry. Co., 192 S.W. 125; Eudy v. Federal L. Co., 220 S.W. 506; Rowden v. Daniels, 151 Mo. App. 24; Burns v. Kansas City, St. S. & M. Ry. Co., 129 Mo. 55; Hoffman v. Peerless White L. Co., 296 S.W. 770.

Jo B. Gardner for respondent.

(1) Respondent's work of unloading ties from this interstate train so that same might proceed upon its journey constitutes interstate employment. New York Cent. Ry. Co. v. Carr, 238 U.S. 261, 59 L. Ed. 1298; Kansas City So. Ry. Co. v. Quin, 85 Fed. (2d) 485; Penn. Co. v. Donat, 239 U.S. 50, 60 L. Ed. 139; McNatt v. Wab. Ry. Co., 341 Mo. 516, 108 S.W. (2d) 37; Rogers v. M. & O. Ry. Co., 337 Mo. 140, 85 S.W. (2d) 581; Gieseking v. Litchfield & M. Ry. Co., 94 S.W. (2d) 375. This rule of law applies to employees other than those in the train service. Johnston v. Chicago & N.W. Ry. Co., 225 N.W. Saunders v. Boston & Me. Railroad, 191 N.E. 381; Evans v. U.S. Ry. Admin., 182 N.Y. Supp. 310; Keathley v. C. & O., 102 So. 233; Vaught v. Ry. Co., 255 S.W. 595, 29 A.L.R. 1202; Western Ry. Co. v. Mays, 72 So. 641; Lindley v. Wabash, 231 N.W. 812, 233 N.W. 450; Farmers' Bank & Trust Co. v. Santa Fe, 25 Fed. (2d) 23. The rule is the same even though the shipment being unloaded was an intrastate shipment. The hauling of empty cars from one state to another is interstate work. Hester v. Ry. Co., 254 Fed. 787; N.C. Ry. Co. v. Zachary, 232 U.S. 259, 58 L. Ed. 591. Hauling company material across the State line constitutes interstate work the same as the hauling of revenue freight. Jonas v. Mo. Pac. Ry. Co., 48 S.W. (2d) 123, certiorari denied, 77 L. Ed. 530; Wabash Ry. Co. v. Whitcomb, 154 N.E. 885, 94 Ind. App. 190, certiorari denied, 52 Sup. Ct. 395, 285 U.S. 546, 76 L. Ed. 937; Chicago, R.I. & P. Ry. Co. v. Wright, 60 L. Ed. 431. (2) Respondent's work in directing the movements of the work train, while on the engine, over his section, was clearly interstate work. After he left the engine and before he resumed some task intrastate in its nature, his employment is characterized by the work he had been doing until he was completely disassociated therefrom. Woolsey v. Wab. Ry. Co., 274 S.W. 871; Erie Ry. Co. v. Downs, 250 Fed. 415, certiorari denied, 62 L. Ed. 1247; Denison v. Payne, 293 Fed.. 333; Brock v. C., R.I. & P. Ry. Co., 305 Mo. 502, 266 S.W. 697, 36 A L.R. 891, certiorari denied, 69 L. Ed. 479. Respondent's work was interstate because some of the ties which he was unloading on his section were for immediate use in the main line track. Pedersen v. Del., L. & W. Ry. Co., 229 U.S. 146, 57 L. Ed. 1125; Kansas City So. Ry. Co. v. Martin, 262 Fed. 241; Sweany v. Wab. Ry. Co., 229 App. 393, 80 S.W. (2d) 216; Hines v. Industrial Comm., 129 N.E. 175; So. Ry. Co. v. Puckett, 244 U.S. 571, 61 L. Ed. 1321; Furferi v. Penn. Ry. Co., 180 Atl. 405; Clevinger v. St. L.-S.F. Ry. Co., 109 S.W. (2d) 372; Fenstermacher v. C., R.I. & P. Ry. Co., 309 Mo. 475, 274 S.W. 720. Respondent's work was interstate because the unloading of these ties, as well as respondent's injuries while so engaged, was not a matter of indifference to the transportation of the interstate merchandise. Their unloading accelerated that work, and the failure to unload impeded that task. 12 C.J. 44; Lamphere v. Ry. Co., 196 Fed. 338; L. & N. Ry. Co. v. Parker, 61 L. Ed. 119; 2D Employers' Liability Cases, 223 U.S. 1, 56 L. Ed. 327; Barker v. Ry. Co., 129 Pac. 1151; 12 C.J. 44; McCormick v. Kansas City, 273 Pac. 471; Morrison v. Ry. Co., 175 Pac. 325; Jackson v. Industrial Board, 117 N.E. 705. The determining circumstance as to whether or not a shipment is interstate is its ultimate destination, and it matters not whether the destination was known when the shipment was begun, either to the employer or employee injured. Philadelphia & R. Ry. Co. v. Hancock, 253 U.S. 284, 64 L. Ed. 907; Kinzell v. Ry. Co., 250 U.S. 130, 63 L. Ed. 896; Ry. v. Sabine Tram Co., 227 U.S. 111, 57 L. Ed. 442; United States v. French, 10 Fed. Supp. 674; McDonald v. Ry. Co., 123 Atl. 591; Eureka Pipe Line v. Halliland, 66 L. Ed. 232; United States v. Philadelphia & R. Ry. Co., 232 Fed. 950. The question whether respondent's work was interstate was one for the jury. Howard v. M. & O. Ry. Co., 335 Mo. 295, 73 S.W. (2d) 275; L. & N. Ry. Co. v. Parker, 242 U.S. 13, 61 L. Ed. 119; Erie Ry. Co. v. Van Buskirk, 1 Fed. (2d) 70.

DALTON, C.

This is an action for damages for personal injuries sustained by plaintiff. Suit was brought under the Federal Employers' Liability Act (45 U.S.C.A., secs. 51-59) and a judgment for $10,000 recovered. Motion for a new trial was filed and overruled, and defendants appealed.

[1] Appellants assign error on the action of the trial court "in refusing to give defendants' requested instruction, in the nature of a demurrer, at the close of all the evidence in the case." The particular grounds are (1) that respondent, when injured, was not engaged in interstate transportation and, therefore, has no cause of action under the Federal...