Kasper v. The Kansas City

• Decision Date: 06 May 1922
• Docket Number: 23,718
• Court: Kansas Supreme Court
• Parties: JOSEPH KASPER, Appellee, v. THE KANSAS CITY, LEAVENWORTH & WESTERN RAILWAY COMPANY, Appellant

207 P. 203

111 Kan. 267

JOSEPH KASPER, Appellee, v. THE KANSAS CITY, LEAVENWORTH & WESTERN RAILWAY COMPANY, Appellant

No. 23,718

Supreme Court of Kansas

May 6, 1922

Decided January, 1922.

Appeal from Wyandotte district court; WILLIAM H. MCCAMISH, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--Interurban Railway--Confined to Intrastate Business--Not Governed by Federal Safety-appliance Act. An interurban railway company which confines its business to transportation of passengers and goods from place to place within the state, but which rents its cars and transfers its employees to the service of a street-railway company for street-car traffic in Kansas City, Kan., and Kansas City, Mo., located contiguously on opposite sides of the Kansas-Missouri state line, is not engaged in the sort of interstate commerce which is governed by the federal safety-appliance act.

2. SAME--Personal Injuries--Action for Damages--Choice of Statutes Under Which Action May Be Brought. In an action for damages to an injured employee against an interurban railway company which confines its business to intrastate traffic except as that traffic may be altered or qualified by the loan of its cars and employees to another company for street-railway service operated across a state line, it is immaterial whether such action be brought under the state law or the federal employer's liability act, where the state and federal acts are substantially similar in text and effect--following Kansas City Ry. v. McAdow, 240 U.S. 51, 60 L.Ed. 520, 36 S.Ct. 252.

3. SAME--Services of Employee Transferred to Another Master--Liability for Damages. Where the services of an employee have been transferred by his master to another master the question whether the employee should look to his own master or to his special master for compensation or damages for injuries depends upon whether or not the employee knew or should have known that his services were thus transferred--following King v. Railway Co., 108 Kan. 373, 195 P. 622.

McCabe Moore, O. H. Dean, H. M. Langworthy, Roy B. Thomson, and Melville W. Borders, all of Kansas City, Mo., for the appellant.

A. J. Herrod, and H. S. Roberts, both of Kansas City, for the appellee.

OPINION

DAWSON, J.:

This was an action by a motorman against an interurban railway company for injuries sustained because of an alleged defective brake equipment on the defendant's car operated by plaintiff. The action was brought under the federal safety-appliance act and under the federal employer's liability act; and it is defendant's contention that the defendant was not engaged in interstate commerce, and consequently that neither of these acts had anything to do with the rights and liabilities of the litigants in the matter in controversy.

The defendant is a Kansas corporation having a line of electrically operated railway from Fort Leavenworth, Kan., to Kansas City, Kan. It does not profess nor hold itself out to do an interstate business. It sells tickets only from station to station in Kansas. By a contract with a street-railway company doing business in Kansas City, Kan., and Kansas City, Mo., there is an arrangement whereby the defendant's interurban cars, at the end of each run on the defendant's railway from Fort Leavenworth to Kansas City, Kan., become street cars for street-car traffic to the center of Kansas City, Mo., and return, and such cars then resume their interurban service between Kansas City and Fort Leavenworth. Under this arrangement, when the interurban cars are performing this street-railway service, street-car fares are charged and collected as in ordinary street cars, and the earnings for street-railway service are divided between the street-railway company and the defendant company according to an agreement between them. In this street-railway service, also, the motorman and conductor of the interurban company who make the run to and from Leavenworth continue in charge of the car, as employees of the street-railway company, to and from Kansas City, Mo. They receive their instructions from the latter company, and this feature of the traffic is governed to some extent by city ordinances.

The accident which led to plaintiff's injury occurred on the inter-city viaduct on the street-railway tracks. Plaintiff says the air-rake equipment was defective, that it would not pump air, and that it failed to maintain pressure, and that this defect caused his car to collide with one in front of it, and injured him. The defendant offered evidence tending to show that the plaintiff's injury was caused solely by his own negligence or that he was guilty of contributory negligence, which would have barred or minimized a recovery if the jury gave it credence; but the trial court held that the federal safety-appliance act governed the traffic, and that a violation of that act barred the defense of contributory negligence otherwise available under the federal employer's liability act. (Spokane & I. E. R. Co. v. Campbell, 241 U.S. 497, 60 L.Ed. 1125, 36 S.Ct. 683.)

We do not think the federal safety-appliance act had anything to do with this case. The defendant was not doing an interstate business--at least not the sort of interstate business governed by that act. The pertinent provision of the federal safety-appliance statute reads:

". . . The provisions and requirements (of the acts of March 2, 1893, and April 1, 1896) . . . shall be held to apply to all . . . cars . . . engaged in interstate commerce . . . excepting those . . . which are used on street railways." (Act of March 2, 1903, ...