Maxie v. Gulf, M. & O. R. Co.

• Decision Date: 09 June 1947
• Docket Number: 40231
• Citation: 202 S.W.2d 904,356 Mo. 633
• Parties: James B. Maxie v. Gulf Mobile & Ohio Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

202 S.W.2d 904

356 Mo. 633

James B. Maxie v. Gulf Mobile & Ohio Railroad Company, a Corporation, Appellant

No. 40231

Supreme Court of Missouri

June 9, 1947

Appeal from Circuit Court of City of St. Louis; Hon. F. E Williams, Judge.

Reversed and remanded.

Wayne Ely for appellant.

(1) The evidence was insufficient to prove that at the time of the occurrence complained of, plaintiff was engaged in interstate commerce, or was employed in such commerce; or that any part of his duties as defendant's employee were in furtherance of interstate commerce, or directly or closely or substantially affected such commerce. Federal Employers' Liability Act, sec. 51; Minneapolis & St. L.R. Co. v Winters, 242 U.S. 353, 37 S.Ct. 170, 61 L.Ed. 358; Toussaint v. Cleveland, C.C. & St. L. Ry. Co., 104 S.W.2d 263; P.F. Collier & Son Co. v. Hartfiel, 72 F.2d 625. (2) The car on which plaintiff was working at the time of his injury had been withdrawn from service, and was not being used in interstate commerce. N.Y.N.H. & H.R. Co. v Bezue, 52 S.Ct. 205, 284 U.S. 415, 76 L.Ed. 370; Minneapolis & St. L.R. Co. v. Winters, 242 U.S. 353 37 S.Ct. 170, 61 L.Ed. 358; Toussaint v. Cleveland, C.C. & St. L. Ry. Co., 104 S.W.2d 263. (3) The case was pleaded, tried and submitted under the Federal Employers' Act. Therefore, the burden was on plaintiff to prove that the negligence complained of was the cause of his injury. Plaintiff failed to prove negligence. Therefore, the evidence was insufficient to justify submission of the case to the jury. Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333; B. & O.R. Co. v. Groeger, 266 U.S. 521, 69 L.Ed. 419; Middleton v. Southern Pac. Co., 61 F.2d 929; Mirkowicz v. Reading Co., 84 F.2d 537, certiorari denied, 299 U.S. 579, 81 L.Ed. 426; New York, C. & St. L.R. Co. v. Kelly, 70 F.2d 548, certiorari denied, 55 S.Ct. 110, 293 U.S. 595, 79 L.Ed. 689; Chicago, M. & St. P.R. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041; Southern Ry. Co. v. Stewart, 115 F.2d 317; A.T. & S.F.R. Co. v. Toops, 281 U.S. 351, 74 L.Ed. 896; Patton v. Texas & Pac. Ry. Co., 179 U.S. 658, 45 L.Ed. 361; Northwestern Pac. R. Co. v. Bobo, 290 U.S. 499, 78 L.Ed. 462; Brady v. Southern R. Co., 320 U.S. 476, 88 L.Ed. 239; Karr v. Chicago, R.I. & P. Ry. Co., 108 S.W.2d 44. (4) The court erred in giving Instruction 1. The evidence was insufficient to prove that plaintiff was engaged in interstate commerce or in the performance of duties in furtherance of commerce, and the court erred in deciding as a matter of law that plaintiff was so engaged and in peremptorily instructing the jury that he was. Federal Employers' Liability Act, sec. 51; Minneapolis & St. L.R. Co. v. Winters, 242 U.S. 353, 37 S.Ct. 170, 61 L.Ed. 358; Toussaint v. Cleveland, C.C. & St. L. Ry. Co., 104 S.W.2d 263; P.F. Collier & Son Co. v. Hartfield, 72 F.2d 625; Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333; Baltimore & Ohio R. Co. v. Groeger, 266 U.S. 521, 69 L.Ed. 419; Middleton v. Southern Pac. Co., 61 F.2d 929; Mirkowicz v. Reading Co., 84 F.2d 537, certiorari denied 299 U.S. 579, 81 L.Ed. 426; New York, C. & St. L.R. Co. v. Kelly, 70 F.2d 548, certiorari denied, 55 S.Ct. 110, 293 U.S. 595, 79 L.Ed. 689; Chicago, M. & St. P.R. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041; Southern Ry. Co. v. Stewart, 115 F.2d 317; Atchison, T. & S.F.R. Co. v. Toops, 281 U.S. 351, 74 L.Ed. 896; Patton v. Texas & Pac. Ry. Co., 179 U.S. 658, 45 L.Ed. 361; Northwestern Pac. R. Co. v. Bobo, 290 U.S. 499, 78 L.Ed. 462; Brady v. Southern R. Co., 320 U.S. 476, 88 L.Ed. 239; Karr v. Chicago, R.I. & P. Ry. Co., 108 S.W.2d 44. (5) At best, the question of whether plaintiff was engaged in commerce at the time of his injury, or in the performance of duties in furtherance thereof, was a question for the jury, and it was error for the court to decide that question as a matter of law instead of submitting it to the jury. Pecos v. Northern Texas Ry. Co., 240 U.S. 439, 60 L.Ed. 730; Flack v. Delaware, L. & W.R. Co., 45 F.2d 683; Philadelphia & R. Ry. Co. v. Berman, 295 F. 658. (6) The court erred in giving Instruction 2 by which the jury were permitted to find defendant negligent by applying the rule of res ipsa loquitur. This was error because (a) there was no evidence that the doors were in the exclusive possession and control of defendant, and (b) because plaintiff's petition pleaded and charged that defendant was guilty of specific acts of negligence. Carpenter v. Baltimore & Ohio R. Co., 109 F.2d 375; Arnall Mills v. Smallwood, 68 F.2d 57; King v. Davis, 296 F. 986; Hoeller v. St. Louis Public Service Co., 199 S.W.2d 7. (7) In telling the jury they might find that defendant was negligent unless they found and believed "from other facts and circumstances in evidence that the occurrence was not due to the defendant's negligence," Instruction 2 erroneously placed the burden on defendant to prove that it was not negligent. Sweeney v. Erving, 228 U.S. 233, 57 L.Ed. 815; McCloskey v. Koplar, 329 Mo. 527, 46 S.W. 2d 557. (8) The court erred in giving Instruction 3. This instruction is erroneous because it submitted the case on the doctrine res ipsa loquitur instead of on the specific negligence pleaded. Carpenter v. Baltimore & Ohio R. Co., 109 F.2d 375; Arnall Mills v. Smallwood, 68 F.2d 57; King v. Davis, 296 F. 986; Hoeller v. St. Louis Public Service Co., 199 S.W.2d 7; Sweeney v. Erving, 228 U.S. 233, 57 L.Ed. 815; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557.

Sol Andrews, Wm E. Gallagher and Wm. H. Allen for respondent.

(1) There is no merit in the contention that the evidence did not show that plaintiff was engaged in interstate commerce within the meaning of the Federal Employers' Liability Act as amended in 1939. The evidence showed conclusively that plaintiff's work as defendant's employee included the making of repairs to freight cars used in interstate commerce, and that he was so engaged when injured. Consequently a part of his duties was the furtherance of interstate commerce and directly affected such commerce, and hence, by the express terms of the Act as amended, he must be considered as having been employed by defendant in such commerce and entitled to the benefits of the Act. Federal Employers' Liability Act, Act of April 22, 1908, c. 149, Sec. 1, 35 Stat. 65, 45 U.S.C.A., Sec. 51, as amended in 1939, Act of August 11, 1939, c. 685, Sec. 1, 53 Stat. 1404, 45 U.S.C.A., Sec. 51; Shelton v. Thomson, 148 F.2d 1; Edwards v. B. & O.R. Co., 131 F.2d 366; Kach v. Monessin Ry. Co., 151 F.2d 400; Great Northern R. v. Industrial Commission, 14 N.W.2d 152; Ermin v. Pennsylvania Ry. Co., 36 F.Supp. 936; Ford v. L. & N.R. Co., 196 S.W.2d 163; Taylor v. Lumaghi Coal Co., 352 Mo. 212, 181 S.W.2d 536; Prader v. Pennsylvania R. Co., 49 N.E.2d 387; Lewis v. Industrial Accident Commission, 19 Cal.2d 284, 120 P.2d 886; Louisville & Nashville R. Co. v. Potts, 178 Tenn. 425, 158 S.W.2d 729; Missouri Pac. R. Co. v. Fisher, 177 S.W.2d 725; Wright v. New York Central R. Co., 263 A.D. 461, 33 N.Y.S. (2d) 531, affirmed 288 N.Y. 719, 43 N.E.2d 97, certiorari denied 317 U.S. 668, 63 S.Ct. 73, 87 L.Ed. 47. (2) Under the Employers' Liability Act as amended on August 11, 1939, it mattered not how long car 4656, in the repairing of which plaintiff was engaged at the time of his injury, was in the repair shop on that occasion, or whether the repairs thereto were such as to be termed "light repairs" or "heavy repairs." Shelton v. Thomson, 148 F.2d 1; Edwards v. B. & O.R. Co., 131 F.2d 366; Kach v. Monessin Ry. Co., 151 F.2d 400; Prader v. Pennsylvania R. Co., 49 N.E.2d 387; And other cases cited under Point (I), supra. (3) Proof that while plaintiff was busily engaged in his work, box-car doors in the exclusive possession and control of defendant, which were propped up on its premises immediately adjacent to plaintiff's place of work and to which his back was turned, fell upon him, crushing him to the ground and seriously and permanently injuring him, made the question of defendant's negligence one for the jury under the res ipsa loquitur rule. The facts of the occurrence warrant an inference of negligence on the part of defendant; they furnish circumstantial evidence of negligence on defendant's part. Jesionowski v. Boston & Maine R., 67 S.Ct. 401; Sweeney v. Erving, 228 U.S. 233, 57 L.Ed. 815; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Southern Railway-Carolina Division v. Bennett, 233 U.S. 80, 34 S.Ct. 566, 58 L.Ed. 860; Whitaker v. Pitcairn, 351 Mo. 848, 174 S.W.2d 163; Terminal Railroad Ass'n. v. Staengel, 122 F.2d 271; Carpenter v. Baltimore & Ohio R. Co., 109 F.2d 375. (4) The petition does not preclude a plaintiff from going to the jury on the res ipsa loquitur rule. McDonald v. Railroad, 219 Mo. 468, 118 S.W. 78; May Department Stores Co. v. Bell, 61 F.2d 830; Chlanda v. St. Louis Transit Co., 213 Mo. 244, 112 S.W. 249; Porter v. St. Joseph R.L.H. & P. Co., 311 Mo. 66, 277 S.W. 913; Powell v. St. Joseph R. L.H. & P. Co., 336 Mo. 1016, 81 S.W.2d 957; Malloy v. St. Louis & Suburban R. Co., 173 Mo. 75, 73 S.W. 159; Kean v. Smith-Reis Piano Co., 206 Mo.App. 170, 227 S.W. 1091. (5) Where the facts are conceded or shown by undisputed documentary evidence the matter becomes one of law for the court. Antonio v. Pennsylvania Railroad Co., 155 Pa. Sup. 277, 38 A.2d 705; Avance v. Thompson, 387 Ill. 77, 55 N.E.2d 57; Wolff, Admx., v. Campbell, 110 Mo. 114, 119 S.W. 622; Central States Savings & Loan Assn. v. U.S. Fidelity & Guaranty Co., 334 Mo. 580, 66 S.W.2d 550; Keeney & Toelle v. Freeman, 236 Mo.App. 260, 159 S.W.2d 532. (6) The fact that these box-car doors belonged to defendant, were a part of its equipment and were propped upon its premises constituted sufficient evidence that they were in defendant's exclusive...