Manes v. St. Louis, San Francisco Railway Company

• Decision Date: 27 March 1920
• Citation: 220 S.W. 14,205 Mo.App. 300
• Parties: JESSE P. MANES, Respondent, v. ST. LOUIS, SAN FRANCISCO RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

220 S.W. 14

205 Mo.App. 300

JESSE P. MANES, Respondent, v. ST. LOUIS, SAN FRANCISCO RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Springfield

March 27, 1920

Appeal from Circuit Court of Laclede County.--Hon. L. B. Woodside Judge.

AFFIRMED.

Judgment affirmed.

W. F Evans and Mann, Todd & Mann and Frank H. Farris for appellant.

(1) The plaintiff must prove that he was employed in interstate commerce or in interstate traffic at the time of his injury and a failure so to do denies him any right to recover under the Federal Employers Liability Act. Vaughn v. Railroad, 177 Mo.App. 165; Miller v. Railroad, 180 Mo.App. 375. (2) The proof must show that the defendant was an interstate carrier and that the employee at the time of his injury was engaged in interstate employment, that is, that the work in which he was employed at the time of his injury was so closely connected with interstate commerce as to be a part of it. Eng. v. Southern Pacific Railway, 210 F. 92. And the test of whether the employee is engaged in interstate commerce is the nature of his work at the time of his injury. [Shanks v. Delaware, L. & W. Railway, 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436.]

L. C. Mayfield and Hamlin & Hamlin for respondent.

No brief by respondents.

BRADLEY, J. Sturgis, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.--

Plaintiff, respondent here, recovered below on trial before the court and a jury, and defendant appealed. Plaintiff's petition originally was in two counts, the first based upon common law negligence, and the second upon the Federal Employers' Liability Act. Upon motion by defendant, plaintiff elected to proceed on the second count.

Plaintiff had been in the employ of defendant, an interstate railway, and its predecessors for several years, most of the time as section hand. About six weeks prior to the injury complained of, plaintiff went to work in what is called the mason gang, making and placing concrete wherever needed. Up until about the middle of the afternoon on the day plaintiff was injured he had been working on the roundhouse foundation in Newburg, Missouri. A short time before this the railroad bridge at Arlington over the Gasconade River had been repaired, and quite a number of old bridge timbers taken out. These old timbers were loaded on flat cars and coal cars, and some of these cars were taken to the yards at Newburg. One of these cars, a flat car, loaded with these old timbers, some 8 X 10 inches, and some 10 X 12, of various lengths, some being nearly the length of the car, had been placed on a side track in Newburg to be unloaded. Other timbers of similar description had prior thereto been unloaded alongside of the track where this car was set. The flat car was loaded eight or nine feet high, the timbers lying flat on each other. Along each side there were four stakes at intervals driven in iron sockets, and extended up above the pile of timbers. The car set east and west, and on a curved track, the high side being on the north.

Plaintiff was directed by his foreman to assist in unloading this flat car. He was directed to get an axe and cut the two middle stakes first. This he did, while another on top the load of timbers threw the stakes, when cut, out of the way. Plaintiff after cutting the two middle stakes, awaited the return of his foreman, who had gone away temporarily while the middle stakes were being cut. On the foreman's return plaintiff was directed to cut the east end stake. After striking this stake, which was seven or eight feet from the end of the car, the west end stake gave way, and the timbers fell catching plaintiff's feet, and crushing them, as he was endeavoring to escape over a pile of timbers alongside the flat car.

Plaintiff charged several specific acts of negligence, but only one was submitted to the jury, viz: that defendant was guilty of negligence in directing plaintiff to cut the stakes without first providing against the timbers falling when the stakes were removed, which in general means that the defendant was negligent in failing to exercise ordinary care to furnish plaintiff a reasonably safe place to work. The answer was a general denial, assumption of risk and contributory negligence.

Alleged error as assigned may be grouped under two heads. (1) The refusal of the court to give defendant's instruction in the nature of a demurrer, and (2) giving instructions on the part of plaintiff, and refusing and modifying instructions asked by defendant. The demurrer was leveled chiefly at the point that plaintiff had bottomed his cause upon the Federal Employers' Liability Act and had failed to show that at the time of his injury he was engaged in work directly connected with interstate traffic, or so closely connected therewith as to become a part of it. The record shows that defendant's railroad is interstate; that the Arlington bridge is on the main line from Missouri to Oklahoma and Texas. Defendant concedes that the repairing of the bridge, the taking out the old timbers and putting in the new, would be work so directly in furtherance of interstate traffic as to be a part of it; but insists that plaintiff was not employed at the time of his injury in the direct furtherance of interstate traffic, or in work so closely connected therewith as to become a part of it. Plaintiff had nothing to do with taking the old timbers out of the bridge or in putting the new ones in; he had nothing to do with loading the old timbers, or with transporting them to the switch in Newburg. The record discloses also that some of the timbers unloaded, or being loaded, were used in the yards at Newburg, and some of them around the cinder pit. It does not appear for what purpose they were used, except those that went about the cinder pit, and the use about the cinder pit must have been in the nature of repairs. The concrete question, therefore, is: Was plaintiff, while assisting in the unloading of these timbers, directly engaged in the furtherance of interstate traffic, or in work so closely connected with interstate traffic as to become a part thereof?

There can be no hard and fast rule by which to determine whether an employee of an interstate railroad is engaged in interstate traffic, but each case must depend upon its own facts. The general rule is that the work in which an employee is engaged must be in the direct furtherance of interstate traffic, or work so closely connected with interstate traffic as necessarily to become a part thereof. [Pedersen v. Railroad, 229 U.S. 146, 57 L.Ed. 1125, 33 S.Ct. 648; Shanks v. Railroad, 239 U.S. 556, 60 L.Ed. 436, 36 S.Ct. 188; Chicago, Burlington & Quincy Railroad Company c. Harrington, 241 U.S. 177; 36 S.Ct. 517; 60 L.Ed. 941; Harrington v. Railroad, 180 S.W. 443; Probus v. I. C. Railway Company, 181 Ky. 7, 203 S.W. 862; Hargrove v. Gulf, C. & S. F. Railway Company, 202 S.W. 188.]

Employees of interstate railroads engaged in repairing tracks, bridges, switches, etc., used for both intrastate and interstate traffic are held to be employed in interstate commerce, and to be within the protection of the Federal Statute in case they sustain injuries while so employed. [Pedersen v. Railroad, supra; Central Railroad Company v. Colasurdo, 113 C. C. C. 379; 192 F. 901; Zikos v. Railroad, 179 F. 893; Jones v. Railroad, 149 Ky. 566, 149 S.W. 951; Probus v. I. C. Railway Company, supra; Hargrove v. Gulf, C. & S. F. Railway Company, supra.]

In the Pedersen case, supra, it is said: "Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars; and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct any defect or insufficiency . . . in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment used in interstate commerce. But independently of the statute, we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements, and the nature of each determined regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?"

Not only is the interstate carrier required to keep its track in a reasonably safe condition, but also it is required to keep its roadbed and right of way in a reasonably safe condition. [Hargrove v. Gulf, C. & S. F. Railway Company, supra.] Removing the discarded timbers taken from the bridge from the right of way would be as directly connected with interstate traffic as was the taking of said timbers from the bridge. The question arises when would the handling of these discarded timbers cease to be a work directly connected with interstate traffic or so closely related thereto as to be a part thereof? An employee engaged in operating the train that hauled these timbers to Newburg was, in the light of the authorities, engaged in work directly in furtherance of interstate commerce. Had the same crew that hauled the timbers to Newburg unloaded them as one continuous job, their work in unloading would surely have been as much in furtherance of interstate commerce as the...