Maxwell v. Kurn

• Decision Date: 02 January 1945
• Docket Number: No. 39158.,39158.
• Citation: 185 S.W.2d 9
• Parties: MAXWELL v. KURN et al.
• Court: Missouri Supreme Court

185 S.W.2d 9

MAXWELL v. KURN et al.

No. 39158.

Supreme Court of Missouri, Division No. 1.

January 2, 1945.

Rehearing Denied February 5, 1945.

Appeal from Circuit Court, Jackson County; Marion D. Waltner, Judge.

Action by Charley E. Maxwell against J. M. Kurn and another, trustees of the St. Louis-San Francisco Railway Company, to recover for personal injuries under the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq. A judgment for plaintiff on defendants' appeal was affirmed by the Kansas City Court of Appeals, 180 S.W.2d 249, which certified and transferred the cause to the Supreme Court under Mo.R. S.A. Const.Amend. 1884, § 6.

Reversed.

Maurice G. Roberts and E. G. Nahler, both of St. Louis, and Jacob L. Milligan, Thomas E. Deacy, and Milligan, Kimberly & Deacy, all of Kansas City, for appellants.

Clarence C. Chilcott and Terrance W. Imes, both of Kansas City, for respondent.

VAN OSDOL, Commissioner.

Action for personal injuries under the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq. Defendants appealed to the Kansas City Court of Appeals from a judgment for plaintiff, and the cause has been certified and transferred to this court, under the provisions of Section 6, Amendment of 1884, Article VI, Constitution of Missouri, Mo.R.S.A., the Kansas City Court of Appeals deeming its decision affirming the judgment, Maxwell v. Kurn, Mo.App., 180 S.W.2d 249, to be in conflict with a previous decision, Wors v. Tarlton, 234 Mo. App. 1173, 95 S.W.2d 1199, of the St. Louis Court of Appeals.

Defendants (appellants) assign error of the trial court in refusing to give a peremptory instruction. Defendants contend that, under the evidence, plaintiff, when injured, was not engaged in interstate transportation; and that the intrastate character of plaintiff's employment has been finally adjudicated by the Workmen's Compensation Commission of Missouri in making an award to plaintiff.

Was the plaintiff, at the time of his injury, "engaged in interstate transportation or in work so closely related to it as to be practically a part of it"? Shanks v. Delaware, L. & W. R. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A.1916C, 797; Chicago & N. W. R. Co. v. Bolle, 284 U.S. 74, 52 S.Ct. 59, 76 L.Ed. 173; Chicago & E. I. R. Co. v. Industrial Commission of Illinois, 284 U.S. 296, 52 S.Ct. 151, 76 L.Ed. 304, 77 A.L.R. 1367; Siegel v. Missouri-Kansas-Texas R. Co., 342 Mo. 1130, 119 S.W.2d 376. But see Taylor v. Lumaghi Coal Co., 352 Mo. 1212, 181 S. W.2d 536, and cases therein cited, as to the test of the employment requisite to an employee's action under the Federal Employers' Liability Act in cases wherein injuries have occurred since the amendment (August 11, 1939) of Section 51 of the Act. The case at bar, it would seem, is illustrative of the difficulty in applying the Act as enacted April 22, 1908, which actuated the Congress in amending the section.

Plaintiff, when injured, October 11, 1934, was defendants' employee in charge of a "one-man" automatic coal chute, which was used in supplying coal to engines at Thayer, Missouri, a point on the Southern Division of defendants' lines. The Southern Division extends from Memphis, Tennessee, to Springfield, Missouri; the Division is subdivided — Memphis to Thayer is called "Memphis Subdivision," and from Thayer to Springfield, "Willow Springs Subdivision." The grades of the Willow Springs Subdivision line are of greater degree than those of the line of the Memphis Subdivision; consequently, tonnage of trains northbound from Memphis is "reduced," and tonnage of trains southbound from Springfield is "filled," at Thayer. It was stipulated by the parties "that at the time of plaintiff's injury all trains defendants operated into or through Thayer, Missouri, by engines coaled at Thayer, contained merchandise being transported between different states of the United States." And there was evidence that all coal from the coal chute was used in engines operating across the Missouri-Arkansas state line, except coal used in one switch engine principally operated in switching movements in filling and reducing of tonnage of trains.

An average of about two "hopper-bottom" cars of coal (or one hundred to one hundred and ten tons) per day was required to coal engines at Thayer; and, according to plaintiff, defendants "would keep enough coal in cars there to run them and then they would keep eight or ten cars for emergency on hand." The practice was "to always put on (the chute) the oldest car first." Defendants have ten tracks at Thayer, three of which, Nos. 6, 7 and 9, are referred to as "storage tracks" by defendants' witnesses; but there is no evidence of storage on these tracks, except empty cars and cars of coal. The three tracks were occasionally used in switching movements, however; and the hopper-bottom cars of coal "on hand" were sometimes found on "the storage track; sometimes on some other tracks" in the yards. It was the testimony of a witness (trainmaster for defendants at Thayer) for plaintiff that the engine coal was not brought in and immediately taken to the chute for unloading, "a stock in the yard" was maintained; that it was the aim of defendants to keep five days' supply of coal "on hand * * * that is our instructions"; and that the loaded coal cars were stored on two tracks, No. 7 and No. 9, designated for storage of coal. In order to avoid delay to the cars in the yards, it was the "endeavor to keep the oldest car spotted first." This was not invariably done, however. All coal so handled was "company coal" for "engine use." There was evidence tending to show that all hopper-bottom cars of coal destined to Thayer were ultimately unloaded into the pit of the coal chute at that point. It was shown by wheel reports and switch lists that the cars of coal involved (when plaintiff was injured) had been transported to Thayer from Carbon Hill, Alabama. The cars had arrived at Thayer October 2d, and were switched onto track No. 5½ by the road crew of the train; "that night," the cars were switched by the switching crew onto track No. 7. The cars were moved to the coal chute track October 9th or 10th.

The morning of October 11th, plaintiff and defendants' roundhouse foreman were pulling (in one movement by means of an electrically driven "car puller" or winch) an empty car from over the pit and two loaded cars to the pit of the coal chute. It was necessary to set the brakes at such time as the first loaded car came into proper position over the pit for dumping the coal into the pit. Plaintiff was thrown, or fell, under the wheels and was seriously injured when he attempted to board a car to set the brakes.

If the moving of the cars of coal to the coal chute track; or the pulling of the cars over the coal pit, as when plaintiff was injured, be regarded as movements apart from the cars' interstate journey from Alabama, the service in causing these movements would not be viewed as service in such close or direct relation to interstate transportation as contemplated by the Federal Employers' Liability Act, although the coal was to be used by engines in interstate hauls; the service would be considered merely the putting of the coal in a convenient place from which it could be taken as required for use. Lehigh Valley R. Co. v. Barlow, 244 U.S. 183, 37 S.Ct. 515, 61 L. Ed. 1070 (see 158 App.Div. 768, 143 N.Y. S. 1053, for a full statement of the facts); Chicago B. & Q. R. Co. v. Harrington, 241 U.S. 177, 36 S.Ct. 517, 60 L.Ed. 941.

Plaintiff, when injured, was not engaged in the work of repairing, or keeping in usable condition, tracks, bridges, road-bed or equipment then in use in interstate transportation, which instrumentalities "in actual use, may be said to have definite character and give it to those employed upon them," as the court observed in the case of Industrial Accident Commission v. Payne, 259 U.S. 182, 42 S.Ct. 489, 491, 66 L. Ed. 888, and in which work a plaintiff-employee was engaged according to the facts of the case of Oglesby v. St. Louis-San Francisco R. Co., 318 Mo. 79, 1 S.W.2d 172, cited by plaintiff. Work of repairing instrumentalities, such as a water crane or coal chute, which are used in providing water or coal or other materials for use upon instrumentalities actually used in interstate transportation, is not in...