Maher v. St. Louis & San Francisco Railway Company
| Decision Date | 08 November 1921 |
| Citation | 234 S.W. 1034,208 Mo.App. 304 |
| Parties | FRANK MAHER, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Karl Kimmel, Judge.
AFFIRMED.
Judgment affirmed.
W. F Evans, E. T. Miller and A. P. Stewart for appellant.
(1) The demurrer to the evidence should have been sustained. (a) No negligence was shown. The danger of injury in moving and handling freight was one inherent in the nature of plaintiff's employment, and ordinarily incident to that employment, and he therefore assumed the risk. (b) The evidence did not bring the case within the Federal Employers' Liability Act. The test of employment in interstate commerce is, was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it? Shanks v. Railroad, 239 U.S. 556; N. Y. Cent. R Co. v. White, 243 U.S. 188; Erie R. Co. v Collins, 40 S.Ct. 450. Measured by this test, plaintiff, at the time of his injury, was not employed or engaged in interstate commerce, and therefore he was not entitled to recover under the Act. Ills. Cent. R. Co. v. Behrens, 233 U.S. 473; Shanks v. Railroad, 239 U.S. 556; Delaware, etc., R. Co. v. Yurkonis, 238 U.S. 439; Chicago, etc., R. Co. v. Harrington, 241 U.S. 177; Minneapolis, etc., R. Co. v. Winters, 242 U.S. 353; Lehigh Val. R. Co. v. Barlow, 244 U.S. 183; Yazoo & M. V. R. Co. v. Houston (Miss.), 75 So. 690; Ills. Cent. Co. v. Rogers 221 F. 52; Froelich v. Railway (N. Dak.), 173 N.W. 822; Buynofsky v. Railroad (N. Y.), 126 N.E. 714; Ills. Cent R. Co. v. Probus (Ky.), 218 S.W. 724; Capps v. Railroad (N. C.), 101 S.E. 216; Minnesota, etc., R. Co. v. Nash, 242 U.S. 619; Ills. Cent. R. Co. v. Cousins, 241 U.S. 641; Baltimore & O. R. Co. v. Branson, 242 U.S. 623. (2) The court erred in giving instruction No. 1 at the instance and on behalf of plaintiff. This instruction is not supported by the evidence, in that there was no evidence that plaintiff was in the employ of defendant in interstate commerce, or that plaintiff was required by defendant to assist in moving the planing mill, or that defendant did not use ordinary care in requiring plaintiff to assist in moving said machine. It was, therefore, error to submit these issues to the jury. Degonia v. Railway, 224 Mo. 564, 590; Wagoner v. Railroad, 118 Mo.App. 239, 250; Chambers v. Railway, 111 Mo.App. 609, 612. (3) The court erred in refusing to give instruction No. 1-A, requested by defendant. This instruction conformed to the evidence, and correctly declared the law of the case. Authorities under point 1. (4) The court erred in refusing to give instruction No. 2-A, requested by defendant. The evidence shows that plaintiff's injury was the result of an accident occurring without any negligence on the part of defendant. Beauvais v. St. Louis, 169 Mo. 500; Feary v. Railway, 162 Mo. 75; Zeis v. Brew. Assn., 205 Mo. 638; Briscoe v. Railway, 222 Mo. 104. (5) The court erred in refusing to give instruction No. 3-A, requested by defendant. The evidence fails to sustain the allegation in the petition that defendant required plaintiff to assist in moving the machine, but, on the contrary, it does show that plaintiff's act in assisting the other employees in moving it was either voluntary on his part or at their request.
Hall & Dame for respondent.
(1) It was not error to overrule defendant's objection to the introduction of any testimony made at the beginning of the trial, on the ground that the petition failed to state facts sufficient to constitute a cause of action. (a) All facts essential to the charge of requiring plaintiff to handle an unsafe, rotten and dangerous machine or shipment, were properly pleaded. Bender v. St. Louis & San Francisco R. Co., 137 Mo. 240; Oglesby v. Missouri Pacific Ry. Co., 150 Mo. 137; Mitchell v. Wabash Ry. Co., 97 Mo.App. 411; Near v. St. Louis & San Francisco R. Co., 261 Mo. 80; Cunningham v. C., B. & Q. R. R. Co., 156 Mo.App. 617; Bible v. Railroad, 169 Mo.App. 530; Gibson v. Bridge Co., 112 Mo.App. 594. The petition alleges and plaintiff proved all facts essential to the charge of negligence of defendant in requiring or permitting him to handle the machine which was unsafe and dangerous, in that it was likely to fall on account of its condition and injure plaintiff. (b) Defendant Railroad Company was not legally bound as a common carrier to accept the freight for shipment in bad condition. Atlantic Coast L. R. Co. v. Rice, 169 Ala. 265, 918 Ann. Cas. 1912, p. 389, 29 L.R.A. (N. S.) 1214; California Powder Works v. Atlantic & P. R. Co., 113 Cal. 329, 36 L.R.A. 648; Fitzgerald v. Adams Express Co. 24 Ind. 447, 87 Am. Dec. 341; Sutcliffe v. Great Western Ry. (1910), I. K. B. (Eng.) 478, 18 Ann. Cas. 224. (c) The case was clearly brought within the Federal Employers' Liability Act. It was admitted the defendant had received the machine for shipment to another State and was an interstate shipment, and it is plain that plaintiff, at the time he was injured, was doing work connected with Interstate Commerce, or in work so closely related to it to be practically a part of it. Erie R. Co. Welch, 242 U.S. 303; Norfolk & Western R. Co. v. Earnest, 229 U.S. 1096; St. Louis & San Francisco Ry. Co. v. Seale, 229 U.S. 1129; Crecelius v. Chicago, Milwaukee & St. Paul Ry. Co., 205 S.W. 281; Pederson v. Delaware, L. & W. R. Co., 229 U.S. 1125; Cassin v. R. Lusk, 277 Mo. 663; Lock v. Chicago, Burlington & Quincy Co., 219 S.W. 919; Manes v. Frisco R. Co., 220 S.W. 14; Williams v. Scharff, Receiver, 222 S.W. 412; Erie R. Co. v. Collins, 40 S.Ct. 450; Erie R. Co. v. Szary, 40 S.Ct. 453; Western Ry. Co. of Alabama v. Mays, 72 So. 641; Solomon v. Southern R. Co., 180 S.W. 165, 133 Tenn. 223; Smigiel v. Great Northern R. Co., 160 N.W. 1057; Chicago, Rock Island & Pacific R. Co. v. Ind. Board of Ill., 273 Ill. 528 (L.R.A. 1916-F, p. 40); Bagort v. New York Central & Hudson River R. Co., 157 N.Y.S. 420. (2) The plaintiff being in the employ of defendant, and engaged in interstate commerce at the time of being required by defendant to assist in moving whatever is to be moved, or what is to be done in the way of handling freight, and it appearing that defendant knew of the defective condition of the planing mill, and the plaintiff was thereby injured, these issues were properly submitted to the jury. Authorities under Point 1. (3) Defendant's refused instruction No. 1-A was properly refused because it is not necessary for plaintiff, in order to be engaged in interstate commerce, to be actually putting or loading the machine in the car, as what they were doing to the machine was something that is incident to any shipment. Authorities under Point 1. (4) Defendant's instruction No. 2-A was properly refused because the evidence shows that the accident was due to the defendant's negligence in requiring plaintiff to handle the unsafe machine. (5) Instruction No. 3-A offered by the defendant was properly refused because the evidence shows, and it cannot be denied, that plaintiff was to do in his trucking whatever was necessary to be done as occasion required without being expressly commanded to do a certain specific act.
This is an action for damages for personal injuries sustained by plaintiff while in the employ of defendant as a freight trucker at its depot in St. Louis, Mo. The suit was originally brought against the St. Louis & San Francisco Railway Company and the St. Louis & San Francisco Railroad Company, but was dismissed as to the Railroad Company. We will refer to the petition as if drawn against the Railway Company alone.
The plaintiff was a truckman in the employ of defendant, a common carrier engaged in interstate commerce, as alleged and admitted. It is charged in the petition that plaintiff, on a day named, was assisting in handling freight at defendant's freight yards in St. Louis; that at that time he was acting under the orders and directions of the defendant, and with other employees of the defendant was engaged in moving a machine known as a planing mill which was in defendant's yards at a place named, and which had been received and accepted by defendant from the St. Louis & Iron Mountain Railway Company for the purpose of being transported from the State of Missouri into the State of Arkansas; that while so engaged in assisting in moving the machine and pushing it, on account of defendant's negligence, as hereinafter set out, the base or frame of the machine broke or gave way, causing part of it to fall upon and crush, break and fracture certain bones of plaintiff's left leg and sprain plaintiff's left ankle, it being averred that these injuries are permanent and painful. It is averred that it was defendant's duty to furnish plaintiff and require him to handle, in the performance of the duties of his employment, only freight that was in a reasonably safe condition to be handled or moved by plaintiff and other of defendant's employees, but that defendant in disregard of its duty in that behalf, required plaintiff to assist in handling and moving the machine, which was unsafe and dangerous in that the base or crate supporting it was old, decayed, weak and rotten, and not of sufficient strength to stand any strain in the handling and moving of the machine, and that these beams or supports were likely, as a natural and probable result in being so moved, when weight or strain was put upon them, to break and collapse and cause plaintiff to be injured as above stated.
Petition avers that defendant knew, or by the exercise of ordinary care would have known, of the defective and dangerous condition of the timbers or...
To continue reading
Request your trial