Martin v. St. Louis-San Francisco Railway Company

• Decision Date: 11 February 1924
• Docket Number: 23280
• Parties: MAY MARTIN, Administratrix of Estate of WILLIAM H. MARTIN, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

258 S.W. 1023

302 Mo. 506

MAY MARTIN, Administratrix of Estate of WILLIAM H. MARTIN, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant

No. 23280

Supreme Court of Missouri

February 11, 1924

Appeal from Christian Circuit Court; Hon. Fred Stewart Judge.

Reversed.

W F. Evans, John H. Lucas, Wm. C. Lucas, G. Purd Hayes and W. P. Sullivan for appellant.

(1) The court erred in refusing to give the peremptory charge asked by appellant at the conclusion of all the evidence. There is no right of recovery alleged and none under the evidence. (a) Not engaged in interstate commerce. Shanks v. Railway Co., 60 L.Ed. 436; Behrin v. Ill. Cent. Ry Co., 233 U.S. 473, 58 L.Ed. 1055; Ukonis v. Railway Co., 59 L.Ed. 1399; Ill. Cen. Railroad Co. v. Peery, 242 U.S. 292, 61 L.Ed. 309; Erie Railroad Co. v. Welsh, 242 U.S. 303; Minneapolis Railroad v. Winters, 242 U.S. 353; Lehigh Valley Railroad v. Barlow, 242 U.S. 183, 61 L.Ed. 1070; Michigan Central Railroad v. Vreeland, 227 U.S. 59. (b) The business was carried on in the usual manner. Union Pac. Railroad v. McDonald, 152 U.S. 262; McMahan v. Pac. Express Co., 132 Mo. 641; Stanley v. Union Depot Ry. Co., 114 Mo. 619; Karle v. Railroad, 55 Mo. 476; Texas Pac. Ry. v. Barnett, 166 U.S. 617. (c) Deceased assumed the risk. Erie Railroad v. Headway, 266 F. 342; American Can Co. v. Allan, 264 F. 547; 26 Cyc. 1196; 2 Thompson on Neg. 1008; Thomas v. Railroad, 109 Mo. 187; Mathis v. Stockyards Co., 185 Mo. 434; Porter v. Railroad, 71 Mo. 77; Williams v. Frisco, 119 Mo. 316; Price v. Railroad, 77 Mo. 508; Gleason v. Mfg. Co., 94 Mo. 206; Huletts v. Railroad, 67 Mo. 239; Patrun v. Frisco, 259 Mo. 124; Morris v. Pryor, 272 Mo. 362. (d) The court should have directed a verdict. Southern Ry. Co. v. Gray, 241 U.S. 333; Empire State Cattle Co. v. Ry. Co., 210 U.S. 1, 52 L.Ed. 931; Flack v. Ry. Co., 285 Mo. 48; Goransson v. Mfg. Co., 186 Mo. 309; Trigg v. Ozark Land & Lumber Co., 187 Mo. 227; State Utility Board v. Sturgis, 281 Mo. 508.

Moore, Barrett & Moore, Hamlin & Hamlin and C. W. Hamlin for respondent.

(1) If at the time deceased received an injury he was engaged in firing an engine belonging to the defendant, which engine was being used to handle, indiscriminately, both interstate and intrastate freight, then the deceased will be regarded as engaged in interstate traffic, and the defendant will be regarded as engaged in transporting interstate commerce. Persons and machinery engaged in and used for the purpose of handling indiscriminately both interstate and intrastate traffic will be regarded as engaged in the transportation of interstate commerce. Atlantic Coast Line Co. v. Reaves, 208 F. 141; No. Pac. Railroad Co. v. Maerkl, 198 F. 1; Colasurdo v. Central Railroad, 180 F. 832; Zikos v. Oregon Ry. & Nav. Co., 179 F. 893; Horton v. Ore. & Wash. Ry. & Nav. Co., 130 P. 897; Oberlin v. Ore. & Wash. Ry. & Nav. Co., 142 P. 554; Montgomery v. Southern Pac. Ry. Co., 131 P. 507; Burtch v. Wabash Ry. Co., 236 S.W. 338; Soeder v. Ry. Co., 100 Mo. 681. (2) The employee assumes such risk as in reasonably incident to his employment, but he never assumes the risk of his employer's negligence. Hough v. Ry. Co., 100 U.S. 213, 25 L.Ed. 612; Wabash Railroad Co. v. McDaniel, 107 U.S. 455, 27 L.Ed. 605; Choctaw Oklahoma Railroad Co. v. McDade, 191 U.S. 64, 48 L.Ed. 96; Jewell v. Bolt & Nut Co., 231 Mo. 176, 194; Smith v. Fordyce, 190 Mo. 28; Curtis v. McNair, 173 Mo. 270; Phippin v. Ry. Co., 196 Mo. 347; Dagan v. Chase, 197 Mo. 267; George v. Railway, 225 Mo. 364. (3) If the defendant's negligence contributed to the accident, that is to say, if its action had a share in bringing about disaster, the defendant would be liable. Sandidge v. Railway Co., 193 F. 875, par. 9. (4) The question of whether the engine and cars were moving rapidly enough to cause an injury when jammed into standing cars is a question for the jury. In other words, where a party is ejected from a train that is moving very slowly, the question of whether the defendant was guilty of negligence in so doing is properly left to the jury to decide. Meyer v. Mo. Pac. Ry. Co., 40 Mo. 154.

Small, C. Lindsay, C., concurs.

OPINION

SMALL

I. Suit by widow for death of her husband under Federal Employers' Liability Act. Plaintiff recovered judgment for $ 17,000, from which defendant appealed.

The petition alleged that, on September 15, 1920, the defendant was engaged in operating a railroad carrying freight and passengers to and from the States of Missouri, Oklahoma, Kansas, Texas and Tennessee. That her husband was the fireman of a switch engine and member of a switch crew in the yards of defendant at Springfield, Missouri. That said engine and crew were used by defendant in making up trains at Springfield going to points in Tennessee, Oklahoma, Kansas and Texas, and in distributing cars brought into such yards from those states. That on the night of September 15, 1920, while working as such fireman on a switch-engine in said yards while handling interstate traffic, as he was engaged in throwing coal on the fire in said engine, the said engine and cars violently collided with other cars standing on the track, and he was thrown by such collision against the iron can rack on the boiler, or against the cab, or bolt in the cab, plaintiff does not know which, but believes it was one or the other, and was injured as follows: "Was bruised near the junction of the lower lumbar region and sacrum by reason of which his spinal cord was injured sufficient to cause loss of consciousness and temporary insanity," and finally caused his death on November 20, 1920. The negligence charged is that the other members of the switching crew, the night being dark, negligently failed to be at such places on said train, where it ran on a curve, so as to enable them to communicate with each other and to signal each other and the engineer in charge of such engine, of the presence of other cars or obstructions on the track, in time to avoid colliding therewith, and the engineer knowing this fact negligently proceeded with said cars and ran said engine and said cars violently against said other cars standing on the track. That a switchman could have been placed on the cars or on the ground where he could have notified the engineer of such cars on the track in time to have prevented such collision. That the engineer also negligently failed to keep a sharp lookout for such obstructions on the track and for signals from the switchmen. The prayer was for $ 50,000 damages. The answer was a general denial, assumption of risk, and contributory negligence on the part of the deceased. The reply put the affirmative defenses of the answer in issue.

Plaintiff's Evidence: Garner, the engineer, testified, in substance: That on the night of September 15, 1920, he was engineer and the decedent was fireman on a switch engine of defendant at its yards in Springfield, Missouri. There were three other members of the switching crew, a foreman and two switchmen as helpers. That night, Wolf was the foreman, Kirkman was a helper and Potter was the other man, he thought, though not certain. The foreman gave directions for the movement of the engine. The engineer stays on the right hand side of the engine -- the fireman on the left. "We were switching freight from and to the freight house from the yard up by the round house, to the freight house."

"Q. Where would those cars come from? A. The engine known as the transfer engine brings the cars from the north yards to the south yards. The transfer engine brings them over. The switch engine switches out what cars belong to the freight house and puts them there. That is what we were doing.

"Q. Suppose the cars at the freight house were loaded for Memphis and Kansas City and Dallas, etc., what do you do with those? A. All those cars they pull out on those tracks from the freight house and switch them out on the hill toward the round house. The cars that go different directions throw all of these on a track together, then this transfer engine picks them up and takes them to the north yards. Some go one way and some another. That night about 10:30 we were pushing ten cars. The switchmen were on the head car. There was a little slight curve on the track near the Jordan, where we came into some cars. About the time we collided with them, one of the switchmen came out and gave me a signal to stop. About the time we hit, he came out where I could see him. I had already stopped. I stopped the engine, I set the brake. I was sitting in the cab window when we hit the cars, looking the way I was going. When the impact came I set the brake on the engine. Martin was putting in coal when we struck those cars. I saw him after the cars struck, he was making an effort to throw a shovel of coal in the fire box and he 'kinda' lost his balance and ran against the can rack with his shoulder about there, I guess (indicating).

"Q. He didn't fall down, or anything like that? You were paying attention to your work, not his? Watching your signals? You didn't know what had happened; the first you saw of him was when you saw him against the can rack? A. Well, yes, I asked him if he was hurt and he said, 'No'. He worked on until morning and quit about 4:30."

Cross-examination "Martin had been in that yard service over a year. Was well acquainted with the yards. Went over that place several times a night. (Witness identifies photograph and blue print showing details of boiler front and cab). Went to work at 8:30 P. M.; quit at 4:30 P. M. I didn't know he was hurt on that occasion. At the time Martin fell against a portion of the car (engine) these cars were not being operated in a different manner from the manner in which they were ordinarily or usually operated. I judge we were...