Kepner v. Cleveland, C., C. & St. L. Ry. Co.

• Citation: 15 S.W.2d 825,322 Mo. 299
• Parties: Louis N. Kepner v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant
• Decision Date: 27 March 1929
• Court: United States State Supreme Court of Missouri

15 S.W.2d 825

322 Mo. 299

Louis N. Kepner v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant

Supreme Court of Missouri

March 27, 1929

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Affirmed.

S W. Baxter and Charles A. Houts for appellant H. M. Quigley of counsel.

(1) Under the Federal Employers' Liability Act a turntable used only for getting engines in and out of a repair shop is not an instrumentality of interstate commerce, and when Kepner was making repairs on this turntable he was not engaged in interstate commerce so as to recover under the act. Shanks v. Railroad, 239 U.S. 445; Railroad v. Winters, 242 U.S. 353; Railroad v. Behrens, 233 U.S. 473; Railroad v. Welch, 242 U.S. 303; Railroad v. Harrington, 241 U.S. 177; Kelly v. Railroad, 238 F. 95; Dunn v. Mo. Pac. Ry. Co., 190 S.W. 966; Lacasse v. Railroad, 65 So. 1012; Ill. Central v. Cousins, 242 U.S. 641; Castonguary v. Grand Trunk, 100 A. 908; Industrial Commission v. Payne, 259 U.S. 181. (2) The burden of proof to establish an interstate employment was on the plaintiff. Hench v. Railroad, 91 A. 1056; Railroad v. Cannon, 296 F. 302; 1 Roberts, Federal Liabilities of Carriers, 465. (3) Kepner's designation of engines entering repair shops as "interstate engines" had no probative value, and even though not objected to was not sufficient, and was not evidence at all, and did not justify the submission to the jury of the question whether or not Kepner was engaged in interstate commerce. Railroad v. Winters, 242 U.S. 353; Railroad Co. v. Kluezynak, 79 Ill.App. 221; Thomasson v. Hunt, 185 S.W. 165; 23 C. J. 40; Sharp v. Baker, 22 Tex. 306; Railroad v. Wiseman, 242 S.W. 695; In re Case, 214 N.Y. 199; Chalcraft v. Railroad, 113 Ill. 86; Young v. Dunlap, 195 Mo.App. 119; Childers v. Pickenpaugh, 118 S.W. 453; McMillan v. Ball, 177 S.W. 315; Nodaway Co. v. Williams, 199 S.W. 224; Scanlan v. Bd. of Directors, 245 Ill.App. 354. (4) When engines coming to Beech Grove repair shops reached the storage yards at Beech Grove their interstate movement terminated, and their subsequent removal into the shops was not a movement in interstate commerce. Kozimko v. Hines, 268 F. 507; Schauffele v. Director Gen., 276 F. 115; Lehigh Valley Railroad Co. v. Barlow, 244 U.S. 183; C. B. & Q. v. Harrington, 241 U.S. 177; Bishop v. Delano, 265 F. 263. (5) The general instruction given on behalf of the plaintiff covering the whole case was erroneous in permitting the jury to find that the turntable was an instrumentality of interstate commerce if it was employed to turn engines, cars, etc., "used" in interstate commerce. Authorities under Point 1. (6) It was within the jurisdiction of the Superior Court of Marion County, Indiana, to perpetually enjoin plaintiff from maintaining this suit in the Circuit Court of the City of St. Louis, Missouri. Reed's Administrator v. Ill. Central, 206 S.W. 794; Railroad v. McGinley, 185 N.W. 218; Wabash v. Pederson, 185 N.W. 523; In re Spools, 183 N.W. 580; Railway Co. v. McCardle, 232 S.W. 464. (7) Section 1 of Article IV of the Constitution of the United States requires that the judgment of the Superior Court of Marion County, Indiana, be given full faith and credit in Missouri. Hampton v. McConnell, 16 U.S. 234; Kenney v. Moore, 252 U.S. 410; Fauntleroy v. Lung, 210 U.S. 230; Burnley v. Stevenson, 24 Ohio St. 474. (8) Kepner assumed the risk: (a) because it was known to him and imminent; and (b) because he continued to work and was injured after the expiration of the time within which the repairs had been promised. Hough v. Railroad, 100 U.S. 213; Southwestern Brewery v. Schmidt, 226 U.S. 162; Davis v. Railroad, 166 Ky. 490; Halloran v. Union Co., 133 Mo. 470; Debitt v. Railroad, 50 Mo. 302; Cole v. Transit Co., 183 Mo. 81; Seaboard Air Line v. Horton, 239 U.S. 595. (9) The verdict was so excessive as to evidence passion and prejudice and should have been set aside on that ground. Varley v. Taxicab Co., 240 S.W. 218; Ternetz v. Lime & Cement Co., 252 S.W. 65; Foster v. Davis, 252 S.W. 433; Thompson v. Smith, 252 S.W. 1023.

Abbott, Fauntleroy, Cullen & Edwards and Charles P. Noell for respondent; Glen Mohler of counsel.

(1) A turntable over which interstate and intrastate engines are carried is a permanent instrumentality of interstate commerce, and a servant, while working on such an instrumentality, is employed in interstate commerce. The use of the turntable by engines moving in interstate commerce gives to the turntable a definite character as an interstate instrumentality, and such an instrumentality gives an interstate character or status to those employed upon it. Pederson v. Ry. Co., 229 U.S. 146; Railroad v. Payne, 251 U.S. 259; Ill. Cent. Railroad Co. v. Behrens, 233 U.S. 478; Lusk v. Bandy (Okla.), 184 P. 144; C. & O. Ry. Co. v. Kornhoff (Ky.), 180 S.W. 523; St. Louis & S. F. Ry. v. Seale, 229 U.S. 156; Kinzell v. Railroad Co., 250 U.S. 130; So. Railroad Co. v. Puckett, 244 U.S. 571; Erie Railroad Co. v. Collins, 253 U.S. 81; Ry. & Nav. Co. v. Williams, 272 F. 439; Ry. Co. v. Contois (Tex. Com. App.), certiorari denied, 274 U.S. 747; Bauchspies v. Railroad Co., 287 Pa. 590, certiorari denied, 273 U.S. 763; Railroad Co. v. Bonham, 130 Tenn. 435; Staley v. Railroad Co., 268 Ill. 358; Colasurdo v. Railroad, 180 F. 832; Ry. Co. v. Brumfield's Admr., 180 Ky. 743, writ of certiorari dismissed, 250 U.S. 649; Erie Railroad Co. v. Szary, 259 F. 181; Grybowsky v. Railroad, 88 N. J. L. 1; Philadelphia Co. v. Smith, 250 U.S. 103; Coal & Coke Ry. Co. v. Deal, 231 F. 604; Dowell v. Wabash (Mo. App.), 190 S.W. 939; Newkirk v. Pryor (Mo. App.), 183 S.W. 682; Brewer v. Mo. Pac. Ry. Co. (Mo. App.), 259 S.W. 825; Eng. v. Southern Pac. Co., 210 F. 92; New York Central v. Carr, 238 U.S. 260; Michigan Central v. Vreeland, 227 U.S. 59; Southern Ry. Co. v. Lloyd, 239 U.S. 501; Railroad Co. v. Zachary, 232 U.S. 248; Railroad Co. v. Sauter, 223 F. 604; Oregon Short Line v. Gubler, 9 F.2d 494. (2) The interstate transportation of the dead or crippled engines was not ended merely because they arrived at the terminal yards. It was still necessary to take said engines from the yards to the shops, and this was part of interstate transportation. Railroad Co. v. Zachary, 232 U.S. 248; Railroad Co. v. Wright, 239 U.S. 548; Railroad Co. v. United States, 232 F. 349; C. & O. Ry. Co. v. Karnhoff (Ky.), 180 S.W. 523; Railroad Co. v. United States, 165 F. 423; United States v. Ry. Co., 157 F. 616; United States v. Railroad Co., 154 F. 516; United States v. Ry. Co., 149 F. 486; Voelker v. Ry. Co., 116 F. 867; Johnson v. Southern Pac. Co., 196 U.S. 21; St. Louis Ry. Co. v. Anderson, 117 Ark. 45; Thompson v. Wabash, 262 Mo. 488; Trowbridge v. Ry. Co., 192 Mo.App. 60; Moliter v. Wabash, 180 Mo.App. 87; Peery v. Illinois Central, 123 Minn. 267; Peery v. Illinois Central, 128 Minn. 120. (3) The hauling of a "dead" road engine not in service or in commercial use, but merely on the way to a repair shop, is a movement in interstate commerce within the meaning of the Federal Act. St. Louis Railroad Co. v. Seale, 229 U.S. 156; Street Ry. Co. v. Covington, 235 U.S. 545; Ry. Co. v. Otos, 239 U.S. 349; Paden v. Furniture Co., 220 Ill.App. 534, certiorari denied, 257 U.S. 645; Ry. Co. v. Rigsby, 241 U.S. 33; O'Neill v. Erie Railroad Co., 169 N.Y.S. 1008; O'Neill v. Term. Ry. Co., 193 Iowa 41.

Frank, J. White, C. J., and Gantt, Atwood and Ragland, JJ., concur; Blair, J., dissents; Walker, J., dissents in a separate opinion.

OPINION

FRANK

This is an action, under the Federal Employers' Liability Act, for personal injuries sustained by plaintiff while adjusting a sand pipe on a turntable in the repair yards of defendant at Beech Grove, Indiana. Trial to a jury resulted in a verdict for plaintiff in the sum of $ 50,000, which upon remittitur was reduced to $ 25,000, for which sum judgment was entered, and defendant appealed.

Defendant is a railroad corporation and at the time in question was an interstate carrier operating its line of railroad through the States of Indiana, Ohio, Illinois and Michigan. It maintained its repair yards and shops at Beech Grove, Indiana. These shops consisted of a number of buildings in which defendant's engines, cars and other equipment were repaired. Various switches and tracks were maintained in the repair yards for the convenient handling of the engines and cars brought there for repairs, and for the purpose of conveying such engines and cars into and out of the repair shops. Among the various shops maintained in the repair yards was one for the repair of locomotives only. The turntable upon which plaintiff was injured, was located in front of this locomotive repair shop. The engine storage yard is located about two hundred yards west of the turntable. Locomotives coming to the shop for repairs are shipped as dead freight to the engine storage yard, and from there conveyed by a yard switch engine over the turntable and into the repair shop. Plaintiff and defendant's witness Jones operated this yard switch engine. The turntable was used for conveying all engines into the repair shop. In this connection, witness Jones testified:

"Q. And your engine, the engine that you and Mr. Kepner worked on, would bring them from the yards into the shop? A. Yes, that was the job we had to do.

"Q. You used the turntable in doing that? A. Yes, on every engine.

"Q. On every engine? A. Yes, if we didn't have to turn the engine we had to put the tank away.

"Q. That was what the turntable was for? A. Yes, sir."

On this same subject, Rothaas, defendant's shop inspector, testified:

"Q. And the turntable is for what purpose? A. For turning locomotives or any equipment going into our shops which needs turning.

"Q. Now, is it used for any...