La Lone v. St. Louis Merchants' Bridge Terminal by.Co,.

• Decision Date: 16 February 1927
• Docket Number: No. 25438.,25438.
• Parties: LA LONE v. ST.LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.
• Court: Missouri Supreme Court

293 S.W. 379

LA LONE v. ST.LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO.

No. 25438.

Supreme Court of Missouri, Division No. 1.

February 16, 1927.

Motion for Rehearing Denied April 11, 1927.

Appeal from St. Louis Circuit Court; Henry A. Hamilton, Judge.

Action for death brought by Edna La Lone, administratrix of the estate of Maurice La Lone, deceased, against the St. Louis Merchants' Bridge Terminal Railway Company. A judgment was rendered in favor of plaintiff. From an order and judgment granting a new trial, plaintiff appeals. Reversed and remanded, with directions.

Charles P. Noell and Glen Mohler, both of St. Louis (James T. Blair, of St. Louis, of counsel), for appellant.

J. L. Howell and R. E. Blodgett, both of St. Louis, for respondent.

ATWOOD, J.

This is an action brought under the federal Employers' Liability Act (U, S. Comp. St. §§ S657-8695), wherein the jury returned a verdict for $22,500 damages to plaintiff for the death of her husband, Maurice La Lone, who, while in defendant's en ploy as a switchman, was fatally injured about 9:40 at night, September 13, 1921, in tho movement of a train of 34 empty cars from the Frisco Twenty-Third street yard to tho Frisco Broadway freight house, both in St. Louis, Mo. Defendant filed motion for a new trial, which the trial court sustained, stating that it did so "for the reason that tho court erred in refusing to give the instruction in the nature of a demurrer offered by defendant at the close of plaintiff's case, and because the court erred in refusing defendant's instruction directing a verdict for defendant at the close of all the evidence."

During the trial defendant admitted that it was a common carrier of both intrastate and interstate commerce at the time the deceased was injured, that at the time of his death the deceased was in the employ of defendant, and that the deceased received injuries at the time and place in question which resulted in his death. La Lone was crushed to death while in the discharge of hip duties at the front end of the engine, which left the track while moving this train of 34 empty cars toward the Broadway freight house. There was substantial evidence tending to show that respondent's negligence caused his death, and opposing counsel agree that the question that moved the court to grant a new trial was as to the sufficiency of the evidence that La Lone was, at the time he was injured, engaged in interstate commerce. We shall therefore examine only such of the evidence as tends to show that La Lone was then and there engaged in interstate commerce, bearing in mi id that, in passing upon a demurrer to the evidence, "the court is required to make every inference of fact in favor of the party offering the evidence, which a jury might, with any degree of propriety, have inferred in his favor." Buesching v. St. Louis Gas-light Co., 73 Mo. 219 loc. cit. 231 (39 Am. Rea. 503); Sexton v. Sexton, 295 Mo. 134, loc. cit. 143, 243 S. W. 315.

The evidence shows that the Frisco Railroad daily loaded and moved cars of freight, both intrastate and interstate, from the Broadway freight house to its Twenty-Third street yard and thence to their several destinations; that the only way cars could be moved between this freight house-and the Twenty-Third street yard was over respondent's tracks and by means of its crew and equipment; that respondent was employed by the Frisco to move empty cars from the Frisco Twenty-Third street yard to its Broadway freight house, and to move them back when loaded to its Twenty-Third street yard, being paid so much a car for the round trip; that the loading platform at this freight house was divided into sections, and that cars destined for certain principal points outside the state of Missouri, such as Tulsa, Old., Dallas, Tex., etc., were daily placed or spotted by respondent at the same locations or sections, where they were loaded and moved therefrom each day, unless the tonnage was insufficient, in which event the car would be held over at the same section or location until the tonnage would justify its movement to point of destination. One of a number of instances testified to will illustrate the general practice. There was a certain location or section where the Tulsa, Okl., car was regularly spotted, and all merchandise for shipment to Tulsa would come to that section to be loaded, and a loaded car moved from that particular spot or section toward the Tulsa destination each day, or as soon as the tonnage would justify its movement.

Respondent's method was to move out the loaded cars from the Broadway freight house to the Twenty-Third street yard during the day, and at night move in the empty cars required for the next day's loading. The foreman of La Lone's crew testified that it was his custom, on going from the freight house to the yard with the loaded cars, to take his order covering the number of empty cars he was to bring back, and that about 5 or 5:30 o'clock in the afternoon of September 13, 1921, he got an order from the yard clerk for the number of empty cars needed that night, and had this order with him when he and his crew took the loaded cars that afternoon from the Broadway freight house to the Twenty-Third street yard. Respondent failed to produce this written order or list at the trial, and when asked whether, "if spotting was to be done, it would have been on the list," this foreman said: "At certain times, when they had special orders for them."

The yard clerk of the Rock Island-Frisco Terminal testified that his custom was to leave an order or list on his desk between 4:30 and 5 o'clock each afternoon in care of the night watchman for respondent's foreman, advising him where the empty cars should be spotted or placed that night, and that his record of the empty cars that were brought up to the Broadway freight house on the night of September 13th showed a total of 34 cars delivered, 7 of them being refrigerator cars, which were specially ordered to be spotted or placed, and were placed at certain designated places, blocks, or sections, on tracks numbered 4 and 5. This same witness further testified that his record of the loaded cars that subsequently went out shows that, of these 7 refrigerator cars, 4 were loaded and moved as interstate shipments. One, numbered 1362 Frisco, moved to Oklahoma City, Okl., on September 14th; and on September 15th another, numbered 2362 Frisco, to Wichita, Kan., another, numbered 1419 Frisco, to Pittsburg, Kan., and another, numbered 2381 Frisco, to Oklahoma City, Okl.

The Frisco agent in charge of the Broadway freight house testified that in loading and moving the cars he followed a schedule; that he did not have this schedule for the 13th and 14th of September, 1921, and was unable to find the spotting orders for the night of ...