Hammontree v. Payne
| Decision Date | 22 December 1922 |
| Citation | 246 S.W. 915,296 Mo. 487 |
| Parties | JEANETTE C. HAMMONTREE, Administratrix of Estate of ROBERT P. HAMMONTREE, v. JOHN BARTON PAYNE, Agent of United States, Appellant |
| Court | Missouri Supreme Court |
Appeal from Polk Circuit Court. -- Hon. C. H. Skinker, Judge.
Reversed.
W. F Evans, John H. Lucas, William C. Lucas and W. W. Wood for appellant.
(1) The court erred in refusing to give the peremptory instruction requested by the defendant. The pleadings and evidence wholly fail to constitute actionable negligence against the defendant. (a) The proximate cause of the death of the deceased was his own act. Flack v. Railway, 285 Mo 28, 48. (b) The humanitarian rule has no application to the instant case. Federal Liability Act is purely statutory. Gray v. Southern Ry. Co. 241 U.S. 333, 60 L.Ed. 1034.
Herman Pufahl, C. W. Hamlin, and Hamlin & Hamlin for respondent.
(1) One actually performing a service essential to or so closely connected with the business of interstate commerce as to be substantially a part of it is to be regarded as being engaged in interstate commerce within the meaning of the Federal Employers' Liability Act. Graber v. Railway Co., 159 Wis. 414; Hardwick v. Wabash, 181 Mo.App. 156; Penderson v. Railroad, 220 U.S. 146, 57 L.Ed. 1125; Crandall v. Chicago & G. W. Railroad, 150 N.W. 165; Central Railroad Co. of New Jersey v. Colasurdo, 192 F. 901; N. C. Railroad Co. v. Zachari, 58 L. Ed 591; Deal v. Coal & Coke Railroad Co., 215 F. 285; Jones v. C. & O. Railroad, 149 S.W. 951; Lambarda v. Boston & M. R. Co., 223 F. 427; Lamphere v. Ore. Railroad & Nav. Co., 196 F. 336; M. K. & T. Railroad Co. v. Rentz, 162 S.W. 959. The test as to whether one is engaged in interstate commerce is whether the work being done is in direct furtherance of interstate commerce or was so closely connected therewith as to necessarily become a part thereof. Glidewell v. Quincy O. K. C. R. Co., 236 S.W. 677. (2) Where a railroad company has for many years permitted a passway to be kept open across its tracks at a point that would otherwise be private grounds and permitted by long acquiescence the public and especially its own employees to freely use the same, said company can no longer, in the operation of its trains, expect a "clear track" at the point where this passway crosses its tracks and is therefore under the necessity, when desiring to pass this point with its trains and engines, of using ordinary care in looking out for and warning any persons who may, at the time, be using or attempting to use said passway. To do less is actionable negligence on the part of the railroad company. Dalton v. Railroad Co., 276 Mo. 663; Ahnefeld v. Wabash Railroad, 212 Mo. 280, 294; Murphy v. Wabash Railway Co., 228 Mo. 56, 76; LeMay v. Mo. Pac. Ry. Co., 105 Mo. 361, 370; Frye v. Railroad Co., 200 Mo. 377, 400; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720; Hufft v. Railroad, 222 Mo. 286, 301; Tibbels v. Great Western Railroad, 219 S.W. 109; Beard v. Mo. Pac. Ry. Co., 197 S.W. 907. (3) Under the Federal Employers' Liability Act negligence upon the part of the defendant must be shown in order to entitle plaintiff to recover, yet defendant will be liable where through its employees it is guilty of any causation negligence causing injury to an employee, no matter how slight the negligence is in comparison to the negligence of the injured employee. N. Y. C. & St. L. R. Co. v. Niebel, 214 F. 952; Sandidge v. Railroad Co., 193 F. 867; Norfolk & Western Railroad v. Earnest, 229 U.S. 114, 57 L.Ed. 1096. It is only when the defendants' acts are no part of the cause of the injury that the defendant is free from liability under the Federal Employers' Liability Act. Grand Trunk Western Railway Co. v. Lindsay, 201 F. 884; L. & N. R. Co. v. Heinnig's Administratrix, 171 S.W. 853; Ross v. Railroad, 144 P. 844. The negligence of the foreman or switching crew in the instant case need not have been the sole and only cause of the injury to the intestate in order to charge the railroad company with negligence. If its negligence contributed to the accident, that is to say, if its action had a share in bringing about the disaster, the defendant would be liable. Sandidge v. Railroad Co., 193 F. 867, 875. (4) While the humanitarian rule as applied in most states has been held not to apply in suits brought under the Federal Employers' Liability Act, still the courts do hold that when the agents, servants and employees of the railroad company are aware of impending danger to another in time to prevent the catastrophe and fail to use reasonable care to prevent it, it is guilty of negligence. Gray v. Southern Railway Co., 241 U.S. 333; Pa. Co. v. Cole, 214 F. 948. (5) It is not clear whether the appellant is seeking to make a point on the fact that because intestate was injured while on his way back from his midday meal, he was not at that instant time engaged in interstate commerce, but if that is their meaning we would assert this proposition of law: Where a party is employed during the day and has time off for lunch that party is as much in the pursuit of his employment when going to and returning from his meal as he is at any other part of the day when he is actually performing work for his employer. Lumbermen's Reciprocal Association v. Benhken, 226 S.W. 154; N. C. R. Co. v. Zachari, 58 L.Ed. 591; M. K. & T. R. Co. v. United States, 231 U.S. 112, 119; Graber v. Ry. Co., 159 Wis. 414.
Action under the Federal Employers' Liability Act for wrongful death of plaintiff's decedent. Judgment below was for plaintiff in the sum of $ 10,000 and defendant has appealed.
Respondent was the wife and is now the administratrix of the estate of Robert P. Hammontree, deceased. On November 24, 1919, Hammontree suffered such injuries through alleged negligence of a train crew in the switch yards of the St. Louis-San Francisco Railway Company at Springfield, Missouri, that he died two days thereafter. Deceased was a clerk in the bridge and building department of said railroad at Springfield. While returning from his lunch on said day he was fatally injured in passing between two cuts of freight cars through an opening left therein for the passage of employees from one side of the yard to another. An engine with one car was attempting to couple onto a string of four cars. The coupling was not made at the first effort, and a second and more forceful effect was made, which caused the four cars to move backwards quickly and close the gap of five or six feet through which deceased was passing. He was caught between the couplers of the cars and his death resulted.
Deceased had worked in the same office for about ten years and, according to some of the witnesses, habitually crossed through the switch yards, rather than go around the public streets. There was a much-used path through the yards where employees crossed from one side of the yard to the other in going to and from the yardmaster's office. The string of freight cars standing on the transfer track had been cut, and an opening left convenient for crossing the track at this pathway. Shortly before one o'clock and in broad daylight, the switching crew of defendant, consisting of an engineer and fireman, a brakeman and foreman, was engaged in the switching movement above referred to. The engine was not over two hundred feet from deceased as he came along the path near the corner of the yardmaster's office. No obstruction cut off his view of the engine or any part of the switching movement. He was an experienced man and, by frequent observation at least, familiar with the work the switching crew was attempting to do.
The foreman of the switching crew testified that he caught a glimpse of the deceased fifty or sixty feet from the track as he came around the yardmaster's office walking in the direction of the transfer track. He did not see him again until after he was injured. None of the other employees connected with such switching movement saw the deceased at all.
The defendant operates a railroad through Missouri and into adjoining states, and a large portion of its business is interstate commerce. Deceased was a clerk in the bridge and building department, which had to do with the building of bridges and culverts for said railroad, over which both intrastate and interstate trains passed.
The petition charged negligence of the switching crew in the following language:
"That when the agents, servants and employees aforesaid first attempted to make the coupling with the four cars aforesaid, they saw the deceased going towards said passway and saw his perilous or apparently perilous position in time to have warned him of the danger in trying to cross said track through said passway, or by the exercise of ordinary care and diligence could have seen him and warned him of the danger in trying to cross said track through said passway or could have placed a watchman at said passway, while they were attempting to make the coupling aforesaid, or they could have waited until he crossed said track before making the same effort to couple said cars, and knowing the dangerous position and peril of the deceased, or which by the exercise of ordinary diligence could have known, they, the said servants, agents and employees of the defendant, without giving him any signal or warning and without waiting for him to cross said track, caused the engine and car attached thereto aforesaid to strike and run against the four cars aforesaid with such force that they were pushed or shoved across the passway aforesaid and against the cars standing on the west side thereof."
Defendant offered no evidence and stood on its demurrer.
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