McNatt v. Wabash Ry. Co.

• Decision Date: 18 September 1934
• Docket Number: 32106
• Citation: 74 S.W.2d 625,335 Mo. 999
• Parties: George E. McNatt v. Wabash Railway Company, Appellant
• Court: Missouri Supreme Court

74 S.W.2d 625

335 Mo. 999

George E. McNatt v. Wabash Railway Company, Appellant

No. 32106

Supreme Court of Missouri

September 18, 1934

Rehearing Denied September 18, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge; Opinion filed at May Term, 1934, July 17, 1934; motion for rehearing filed; motion overruled at September Term, September 18, 1934.

Reversed and remanded.

N S. Brown and Homer Hall for appellant.

(1) This suit is under the Federal Employers' Liability Act and the rights and obligations of the parties are to be determined by the provisions of that act, and by the applicable principles of the common law as interpreted and applied in the Federal courts. Williams v. Pryor, 46 S.W.2d 341, affirmed in Pryor v. Williams, 254 U.S. 43; Martin v. Ry. Co., 325 Mo. 1107, 30 S.W.2d 735; Seaboard Air Line Ry. v. Horton, 233 U.S. 501, 34 S.Ct. 635, 58 L.Ed. 1062, L. R. A. 1915 C, 1 Ann. Cas. 1915 B, 475; Southern Ry. Co. v. Gray, 241 U.S. 339, 36 S.Ct. 558, 60 L.Ed. 1030; Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U.S. 474, 46 S.Ct. 564, 70 L.Ed. 1041; Toledo, St. L. & W. Railroad Co. v. Allen, 276 U.S. 168, 48 S.Ct. 215, 72 L.Ed. 513. (2) The plaintiff failed to prove that at the time of the injury he was engaged in interstate transportation or in work so closely related to it as to be practically a part of it, and he is not entitled to recover, and the court erred in refusing to instruct the jury to return a verdict for defendant. Cox v. Railroad Co., 61 S.W.2d 965; Phillips v. Ry. Co., 328 Mo. 240, 40 S.W.2d 1046; Jarvis v. Railroad Co., 327 Mo. 428, 37 S.W.2d 602; Martin v. Ry. Co., 302 Mo. 506, 258 S.W. 1023; Myers v. Railroad Co., 296 Mo. 239, 246 S.W. 257; Ill. Cent. Railroad Co. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051; C. B. & Q. Railroad Co. v. Harrington, 241 U.S. 177; Ill. Cent. Railroad Co. v. Perry, 242 U.S. 292, 37 S.Ct. 122, 61 L.Ed. 309; Erie Railroad Co. v. Welsh, 242 U.S. 303; Minneapolis & St. L. Railroad Co. v. Winters, 242 U.S. 353, 37 S.Ct. 170, 61 L.Ed. 358; Chicago & Northwestern Ry. Co. v. Bolle, 284 U.S. 74; Chicago & Eastern Ill. Railroad Co. v. Industrial Comm., 284 U.S. 298, 52 S.Ct. 151, 76 L.Ed. 304; Wise v. Ry. Co., 43 F.2d 692; Pope v. Railroad Co., 54 F.2d 575; Middleton v. So. Pac. Co., 61 F.2d 929. (3) The testimony of plaintiff that the car taken from the airplane track was destined to Arlington, Illinois, was incompetent, and the admission of it is reversible error. The purpose of the testimony presumably was to prove that plaintiff was engaged in interstate transportation at the time he was injured, by proving that the car was being transported in interstate commerce by proving the contents of a written document or record, but no foundation was laid for the admission of such testimony. The plaintiff did not testify that he had ever seen such a document or record showing the destination of the car and the clear inference is that he did not see such document or record, and there was no evidence that any such document or record was in existence. Scrivner v. Am. C. & F. Co., 330 Mo. 431, 50 S.W.2d 1001; Charles v. Charles, 313 Mo. 265; Sharp v. Ry. Co., 213 Mo. 536; Cazier v. Hinchey, 143 Mo. 208; Chilton's Admr. v. Shelley, 49 S.W.2d 306; Cohen v. New York Life Ins. Co., 21 F.2d 278.

Eagleton, Henwood & Waechter and Frank P. Aschemeyer for respondent.

(1) In determining whether the evidence is sufficient to sustain the judgment, plaintiff must be given the benefit of all favorable evidence, together with all of the favorable inferences that may reasonably be drawn therefrom. In determining the sufficiency of the evidence, the court has no right to pass upon the credibility of the witnesses or the weight of the evidence. Gunning v. Cooley, 281 U.S. 90; Gettys v. Am. C. & F. Co., 16 S.W.2d 85; Western & A. Railroad v. Hughes, 278 U.S. 496; Great Northern Ry. Co. v. Donaldson, 246 U.S. 121; Wabash Ry. Co. v. Lewis, 48 F.2d 519. (2) The undisputed evidence shows that plaintiff was employed on an interstate train and that the various movements being made at and prior to the time of the injury were for the purpose of placing cars in this train so that it could continue its journey. The moving of the cars onto the spur track was but an incident to placing cars in the interstate train, and was in direct furtherance of the dominant purpose of facilitating the movement of the interstate train. On this evidence plaintiff, as a matter of law, was engaged in interstate transportation at the time of the accident. 2 Roberts Fed. Liability of Carriers (2 Ed.) 1417; L. & N. Railroad Co. v. Parker, 242 U.S. 13; Birmingham Belt Railroad Co. v. Dunlap, 58 F.2d 951; Sullivan v. Ry. Co., 23 F.2d 323; Stottle v. Ry. Co., 18 S.W.2d 436; Midwest Natl. Bank & Tr. Co. v. Davis, 233 S.W. 406; N. Y. Cent. & H. Railroad Co. v. Carr, 238 U.S. 260; Youngstown & O. Railroad Co. v. Halverstadt, 12 F.2d 995; Thornbro v. Railroad Co., 91 Kan. 684, 139 P. 410; Daley v. Railroad Co., 166 N.Y.S. 840; Sears v. Railroad Co., 169 N.C. 446, 86 S.E. 176.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

In this case plaintiff sues for damages for personal injuries caused by defendant's negligence. It is alleged that at the time plaintiff's injuries were so received and inflicted the plaintiff and the defendant were engaged in interstate commerce and in handling, moving and switching cars moving and destined in interstate commerce. The case is therefore under and governed by the Act of Congress regulating interstate commerce, known as the Federal Employers' Liability Act. The defendant denies that at the time the plaintiff was injured he and defendant railroad were engaged in interstate transportation of freight, and denies that the freight cars being handled, moved and switched at the time plaintiff was injured were moving or destined in interstate commerce, but were moving only in intrastate commerce, and therefore that plaintiff cannot recover in this action. The court by its instructions to the jury permitted it to return a verdict for plaintiff, which it did, and the defendant by this appeal challenges the right of plaintiff to recover under the Federal act in question. This is the question for our first and perhaps only consideration and determination.

The undisputed facts are, that on the occasion in question the defendant was operating a freight train on its line of railroad running from Moberly, a division point, to St Louis; that is, the engine and train crew operated between such points. This train, consisting of some thirty or more freight cars, may be properly designated as an interstate train in that some at least of the cars and freight being moved were interstate shipments, being cars loaded with live stock destined to the Union Stock Yards in East St. Louis, Illinois. Other cars doubtless contained freight originating or destined to points beyond this State. This train was also designated as a local freight in that it stopped at various local stations between Moberly and St. Louis to deliver or take on cars of freight destined to or loaded at such local stations; and it did switching and spotting of freight cars at the various local switch yards. The crew of such train consisted of the engineer and fireman operating the engine and at least two or perhaps three brakemen who performed the usual duties of brakemen and acted as switchmen in the switching operations. Plaintiff was one of these brakemen. This train arrived at the station of Anglum, in the north part of St. Louis County, about ten or eleven o'clock on the night of February 20, 1929, and during the course of the freight car movements at that station the plaintiff received the injury for which he asks damages. At this point were located two large airplane plants or factories and it is a matter of some human interest, stated to be true, that here was constructed the famous "Lone Eagle" in which Lindbergh made the first successful flight across the Atlantic Ocean. The point of interest here is that at this point are manufactured or constructed airplanes and their constituent parts and such here enter into commerce for railroad transportation. At this point defendant railroad maintained a passing track switch parallel with and connected at either end with the main line running east and west. It also maintained a stub track or industrial switch connected with the passing track, both switches being on the south side of the main line, and this industrial switch track extended a half mile or more south and east, connecting the passing track and main line with the loading platforms of these aircraft factories.

On the night in question there were several freight cars on this industrial switch, but only two of which are important to be considered. One of these was a loaded freight car ready to be taken out and transported to St. Louis and, as plaintiff contends, destined to Arlington Heights in Illinois. This car was furthest east from the switch connection, being near the east end of this stub switch, and the other cars were between the stub switch connection and this loaded car. This loaded car was to be taken out and put in the train for transportation to St. Louis. The other car important in this transaction was next to the loaded car on the west and was an empty furniture or automobile car some fifty feet long. This car was to be placed or "spotted" at one of the aircraft factories for future loading. The train crew was therefore charged with two duties or objects to be accomplished -- the taking out and further transportation of the end or loaded car and the placing or spotting of the large empty car at the aircraft factory for future loading. To accomplish this the train was left standing on the main...