Montgomery v. Terminal R. Ass'n of St. Louis

• Decision Date: 12 June 1934
• Docket Number: 32104
• Citation: 73 S.W.2d 236,335 Mo. 348
• Parties: George Montgomery v. Terminal Railroad Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

73 S.W.2d 236

335 Mo. 348

George Montgomery v. Terminal Railroad Association of St. Louis, a Corporation, Appellant

No. 32104

Supreme Court of Missouri

June 12, 1934

Rehearing Overruled June 12, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Arthur H Bader, Judge; Opinion filed at September Term, 1933 April 19, 1934; motion for rehearing filed; motion overruled at May Term, June 12, 1934.

Reversed.

T. M. Pierce, J. L. Howell and Walter N. Davis for appellant.

(1) Plaintiff's cause of action was based on the Federal Employers' Liability Act. The evidence shows that plaintiff was not engaged in interstate commerce at the time of injury. Consequently demurrers to the evidence offered by defendant should have been sustained and the cause dismissed for want of jurisdiction, as we show: (a) The kind or amount of evidence required to establish fact is not subject to the control of the several states. C. & O. Ry. Co. v. Stapleton, 279 U.S. 587, 73 L.Ed. 861, 49 S.Ct. 422; C. M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1041, 46 S.Ct. 564. (b) That witnesses are in the employ of the defendant does not impair their credibility. Penn. Railroad Co. v. Chamberlain, 288 U.S. 33, 77 L.Ed. 503, 53 S.Ct. 391; C. & O. Railroad Co. v. Martin, 283 U.S. 509, 75 L.Ed. 983, 51 S.Ct. 453. (c) The United States Supreme Court has decided that undisputed evidence is to be considered in determining whether or not an employee is engaged in interstate commerce. Plaintiff's statement that the only orders he received that morning was to operate the motor car and that they were going as far as Bonhomme Bridge fails to show that he was engaged in interstate commerce. B. & O. S.W. v. Burtch, 263 U.S. 540, 68 L.Ed. 433, 44 S.Ct. 165. (d) The plaintiff based his right of recovery, relative to interstate transportation, as shown by his instruction, on the postulate that, at the time of injury, he was then and there engaged in inspecting defendant's bridges and other property along defendant's main track. Middleton v. Railroad Co., 61 F.2d 929; Railroad Co. v. Industrial Comm., 348 Ill. 360, 180 N.E. 912. (e) The undisputed and overwhelming evidence shows that plaintiff, when injured, was operating the motor car to go to Bonhomme Bridge to repair it, an overhead highway bridge crossing defendant's tracks in St. Louis County. If that was true, and the undisputed evidence so shows, plaintiff was not engaged in interstate commerce, as that was the primary and definite purpose and work. Hallstein v. Railroad Co., 30 F.2d 594; Railroad Co. v. Sifuentes, 6 S.W.2d 192. (f) The burden of proof rested on plaintiff to show that he was engaged in interstate commerce. Jarvis v. Railroad, 37 S.W.2d 602.

F. A. Foster, Strubinger & Strubinger and Allen, Moser & Marsalek for respondent.

(1) The record shows that the defendant is a terminal railroad and is engaged in intrastate and interstate commerce. It is therefore subject to the terms of the Federal Employers' Liability Act. Miller v. Railroad Co., 58 F.2d 635, cert. den. 53 S.Ct. 18; United States v. Union Stockyards, etc., Co., 226 U.S. 286, 57 L.Ed. 226; Spaw v. Ry. Co., 198 Mo.App. 552; Cott v. Railroad Co., 231 N.Y. 67, 131 N.E. 737, cert. den. 257 U.S. 636. (2) The plaintiff, at the time he was injured, was engaged in inspecting the bridges and structures used by defendant in carrying on its work of interstate transportation. He also was subject to the Federal Act. 2 Roberts, Federal Liabilities of Carriers (2 Ed.), sec. 774, p. 1485; Sells v. Ry. Co., 266 Mo. 155; Anest v. Railroad Co., 89 Wash. 609, 154 P. 1100; Smith v. Ind. Acc. Comm., 26 Cal.App. 560, 147 P. 600; Hines v. Logan, 269 F. 105; Union Bank of Chicago v. Railroad Co., 267 Ill.App. 554; Bordelon v. New Orleans Terminal Co., 14 La. App. 60, 129 So. 452; Ind. Acc. Comm. v. Davis, 259 U.S. 182, 66 L.Ed. 888; Louisiana R. & N. Co. v. Williams, 272 F. 439, writ of error dis. 257 U.S. 610, 66 L.Ed. 396; Brier v. Railroad Co., 183 Iowa 1212, 168 N.W. 339. (3) Defendant's evidence, which was to the effect that at the time of his injury plaintiff and his fellow workers were proceeding to the Bonhomme Bridge for the purpose of repairing it, also shows that plaintiff was engaged in work so closely related to defendant's interstate transportation business as to be practically a part of it. Railroad Co. v. Knapp, 233 F. 950; Brier v. Railroad Co., supra; Baker v. Railroad Co., 181 N.Y.S. 675, 191 A.D. 322; Pedersen v. Railroad Co., 229 U.S. 146, 57 L.Ed. 1125; Swain v. Terminal Railroad Assn., 220 Mo.App. 1088, cert. den. 48 S.Ct. 18; Prink v. Railroad Co., 153 Wash. 300, 279 P. 1115; Quirk v. Railroad Co., 235 N.Y. 405, 139 N.E. 556; Newkirk v. Pryor, 183 S.W. 682; Eng v. Railroad Co., 210 F. 92. (4) Where the facts are in dispute or more than one inference can be drawn from them, the question whether the employee was engaged in interstate commerce is one for the jury. Railroad Co. v. Donat, 239 U.S. 50, 60 L.Ed. 139; Young v. Lusk, 268 Mo. 625; Brimer v. Davis, 211 Mo.App. 47. (5) In passing upon a request of a defendant for a peremptory instruction, it is the duty of the trial court, under the Federal rule, to accord the plaintiff the benefit of all inferences in his favor that may be fairly and reasonably deduced from the evidence; and if uncertainty as to the existence of liability arises from a conflict in the evidence, or if reasonable and fair-minded men may honestly draw different conclusions from the facts in evidence, the case is one for the determination of the jury. Koonse v. Railroad Co., 18 S.W.2d 470, cert. den. 50 S.Ct. 34; Henry v. Railway Co., 61 S.W.2d 342; Young v. Wheelock, 64 S.W.2d 950; Clark v. Bridge Co., 62 S.W.2d 1079; Railroad Co. v. Hughes, 278 U.S. 496, 73 L.Ed. 473; Gunning v. Cooley, 281 U.S. 94, 74 L.Ed. 724; Railroad Co. v. Groeger, 266 U.S. 527, 69 L.Ed. 423; Gardner v. Railroad Co., 150 U.S. 360, 37 L.Ed. 1110; Railroad Co. v. Cox, 145 U.S. 606, 36 L.Ed. 833; Railroad Co. v. Powers, 149 U.S. 45, 37 L.Ed. 643.

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

OPINION

HYDE

This is an action for damages for personal injuries under the Federal Employers' Liability Act (U.S.C.A Title 45, Sections 51-59). Plaintiff had a verdict for $ 20,000. Upon motion for new trial the trial court ordered a remittitur for $ 7,500, which was made, and a new judgment entered for $ 12,500. Defendant has appealed from that judgment.

Plaintiff was a bridge carpenter in the employ of defendant, which operated a railroad in the States of Missouri and Illinois, crossing the Mississippi River between the two States on the Eads bridge. Defendant's bridge department was in charge of Mr. Compton, as foreman. There were assistant foremen under him in charge of various sections of the line. The section upon which plaintiff worked covered more than ten miles of the main line in the State of Missouri from Carrie Street in the city of St. Louis to the Frisco Railway junction in St. Louis County. The bridge department had charge of all the woodwork on bridges, taking care of footings and pilings, and putting in ties on bridges. The bridge men had nothing to do with the maintenance or construction of other parts of the tracks. Mr. Watkins, the assistant foreman in charge of the gang in which plaintiff worked, testified that on the morning of the day plaintiff was injured, he directed plaintiff to operate the motor car on which the gang rode to work; that they were going to repair a broken plank in the Bonhomme Road bridge, an overhead bridge in St. Louis County carrying a county road above the railroad's tracks; that defendant was charged with the maintenance of this bridge; that he found out the evening before about the broken plank in this bridge; that in a telephone conversation with Compton the evening before he reported it to him; and that he told him that he was going out the next morning to repair it.

Plaintiff testified that Watkins "told me to get the motor car running, we were going out as far as Bonhomme Road looking over the bridges and things. . . . That is all he told me at that time." Some of the other men in the gang gave him the information that they were going out to repair the Bonhomme bridge that morning. There were seven men in the gang who rode on the motor car and they also had on it "lug hooks, crow bars, cross cut saws and ropes and all our carpenter tools . . . water bag, hand tools that we always carry with us." They started out from Easton Avenue (about six miles from Bonhomme Road), after getting orders permitting them to go over the line, from the telegraph operator. Plaintiff operated the car. He testified that as they crossed Ferguson Avenue he slowed down the motor car but did not stop and as they went by looked over a slide where a fence had been built to keep the sliding earth off of the tracks. He ran the motor car on to the Rock Island junction, where they stopped and hung out their order staff, "a rod with a number on it that the dispatcher gives." The motor car went around the Y there, stopping twice to throw switches. Plaintiff said that they also picked up three old ties "in between the two tracks there at the Y and loaded them on the motor car." He said the foreman "ordered us to pick those ties up and put them on the motor car." Plaintiff said he had no idea "what they were going to use those old ties for." Near the Y was the river Des Peres bridge, carrying the railroad tracks over the river. Plaintiff said that he slowed down and looked at it but did not stop. He said "I looked at it; I don't know whether the rest looked at it or not." Near the Des Peres bridge the railroad went under Walton Road bridge, an overhead bridge carrying a county road over the railroad. He said they looked over...