Milburn v. Chicago, M., St. P. & P. R. Co.

Decision Date03 September 1932
Docket NumberNo. 30285.,30285.
PartiesMILBURN v. CHICAGO, M., ST. P. & P. R. CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, Grundy County; A. G. Knight, Judge.

Action by John Milburn against the Chicago, Milwaukee, St. Paul & Pacific Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Morrison, Nugent, Wylder & Berger, of Kansas City (Scott J. Miller, of Chillicothe, and H. J. Bain, of Trenton, of counsel), for appellant.

Platt Hubbell, of Trenton, and George H. Hubbell, of Kansas City, for respondent.

HYDE, C.

This is an action for personal injuries. The petition of plaintiff (respondent here) was in two counts. Respondent alleged that he was burned by the explosion of gasoline which was negligently kept in a kerosene barrel. His first count was upon the theory that the defendant, the Chicago, Milwaukee, St. Paul & Pacific Railroad Company (hereinafter referred to as the railroad) was liable for his injuries under the Federal Employers' Liability Act (45 USCA §§ 51-59). His second count was upon the theory that the railroad was liable for his injuries under the common law of the state of Iowa, as changed by the Iowa Workmen's Compensation Act (Code 1927, § 1361 et seq.), which the railroad had rejected. It had elected to pay damages, for personal injuries to employees, under the common law and statutes of Iowa, as modified by the Compensation Act. The effect of this was to take away some of its common-law defenses, and to establish a different rule as to the burden of proof in cases of injuries to employees arising out of and in the course of their employment. The same facts were alleged in both counts, and they differed only as to matters concerning whether or not respondent was engaged in interstate commerce.

Respondent, who then lived at Mystic, Iowa, was employed by the railroad, as a member of an extra gang, repairing its main line track through the states of Missouri and Iowa, by taking out cinder ballast and old ties, raising the track, putting in new ties and reballasting with gravel. This work made the track "a good deal more solid and it was safer for a train to pass over it at a high rate of speed." There were over 200 men in the gang, who worked all of the summer and fall of 1928, during which time they covered a large section of the line in Missouri and moved into Iowa. The men lived in bunk cars furnished by the railroad; about 15 men being quartered in each car. It was explained by the railroad's general foreman in charge of the whole gang that "you have to have them in bunk cars to get enough men to do this work, there is not enough men in these little towns." About half of the men employed lived in nearby sections of Missouri and Iowa, and the foremen referred to them as "natives." The railroad furnished them free transportation to their homes every other Sunday. The rest of the men were itinerant track workers, who did not live in these states. They made their homes more permanently in the bunk cars, and were referred to by the foremen as "hoboes." When they left the bunk car camp, they usually wanted to go to Kansas City or Chicago and were given transportation there, after working two or three months. The extra gang was organized into three groups under subforemen. Two of these groups were kept together and worked together. One group dug up the old ballast, and the other raised the tracks and put in and tamped the new ties. The third group (composed mostly of the so-called "hoboes" who followed that work) usually followed them with their camp at a separate place and completed the work. Their job "was to unload the gravel and level up the track, line it up and dress it."

Respondent was a member of the head gang, as were most of the "natives." He testified that he was employed by one of the subforeman who told him he would "live at the bunk cars with the gang, kept there and live there, because they couldn't keep properly organized without the men did live there" and "would pay one dollar a day for board and sleep in the bunk cars and do our washing there and make it our home while working in the gang." Respondent received thirty-five cents per hour for his work. The gang commenced work, in the morning, at seven o'clock, stopped at noon and were fed at the bunk car camp, went back to work at one, and quit at five in the afternoon, six days each week. With the head gang there were two motorcars, operated by Ford engines, which ran on the railroad track and pulled trailers, upon which the men, their tools, and supplies were transported from the bunk car camp to the place of their work. Respondent took care of one of these motorcars, kept it filled with gasoline, water, and cylinder oil, and did anything else necessary to keep it in good working order. Respondent did part of this work before the other men went out to their work, but when not engaged with the motorcar, he helped with the other work of the gang, such as digging out ballast, pulling in ties, spiking them, and unloading gravel off the work train.

It was shown that there was occasionally work to be done on Sunday. This usually was unloading gravel where the track had been raised. Interstate trains were continually running over the track, during the progress of the work, and they had to slow down in crossing the places where the work had not been completed. In order to warn trains where to slow down at night, watchmen (members of the gang) were stationed at these places with lanterns. The evidence was conflicting as to whether the men were kept in the camp on the Sundays they were not furnished transportation home. It is at least reasonably inferable, from respondent's evidence, that appellant did not want the men to leave camp on these alternate Sundays, without permission, but that they were expected to stay there subject to call, except that when the work was so near their homes that they would lose no working time Saturday or Monday in traveling, appellant was willing for the men to go home every Sunday, if they furnished their own means of transportation. Even then some of the men said that, under such circumstances, they had been furnished transportation every week. The railroad's evidence was that the men were free to go anywhere they chose on Sunday; that it was not necessary to tell their foremen they were going; that the Sunday work was entirely voluntary; that it was usually known on Saturday night if such work was to be done; and that the foremen arranged then for the men who were to do it. If emergencies arose on Sunday the foremen said they would call for volunteers to do the work, and that there were always enough of the men referred to as "hoboes," who stayed in camp on Sunday, to do what was necessary to be done. Another disputed matter was concerning what the men were required to do to keep themselves, their clothes, and their bunk cars clean. Respondent's evidence was that he was told, when he was employed, that he was to do his washing at the camp; that this was customarily done on Sunday; and that bedding was aired and bunk cars cleaned on Sunday. If laundry was not done in camp, according to respondent, it would have to be taken home by the men or sent to a city laundry. It is respondent's theory that this would cause the men to lose time from work and result in delaying the track work, and that by washing clothes in camp on Sunday the track work was expedited. It was shown, however, that some of the "natives" did take their clothes home to be washed. According to the railroad's evidence, there was no requirement about when or where washing was to be done or bedding aired or bunk cars cleaned; but that the men could do as they liked about it. The railroad had a contract with the Olympic Boarding Company to furnish the men meals and bedding. They were charged $7 per week, which was taken out of their pay, whether they went home on Sunday or not. The boarding company had, in addition to their cooks, employees called "bull cooks," who carried water and fuel for the cooks. They were also expected to keep the bunk cars clean and to keep the lamps in the bunk cars filled with kerosene. It was shown, however, that the "natives" usually cleaned their bunk cars because they kept them locked. This was done by respondent and the other men who lived in the car with him.

At the time respondent was injured, the bunk car camp was on a spur track in the railroad yards at Blakesburg, Iowa, a small town of about 400 population. It had been located there for two weeks or more, and the track work was being done several miles southwest of Blakesburg. On Friday morning preceding the Sunday when he was injured, respondent and the man who cared for the other motorcar went to the tool car, which was kept on the house track back of the depot, on the opposite side of the railroad yards from the bunk car camp, to get gasoline for the motorcars. There were two barrels in the tool car; a dark green barrel in which kerosene was kept, and a gray barrel with a red stripe for the gasoline. They found the gasoline barrel empty. Respondent said he went to the head foreman and told him that there was no gasoline. The head foreman told him that "there ought to be; just had it filled yesterday." When he went back and looked at the kerosene barrel he found it full. He said it had not been over one-third full earlier that week when he got kerosene from it. Respondent and the other motorcar man poured some of the contents of the kerosene barrel on the ground and tested it by lighting a match and discovered that it was mostly gasoline. Respondent says that he went back to the head foreman and told him that the gasoline was in the kerosene barrel and "it was a poor place for them to have gasoline." He said the head foreman said "Well, you guys go get it and use it today, I will see...

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