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

• Decision Date: 03 January 1939
• Docket Number: No. 24910.,24910.
• Citation: 123 S.W.2d 235
• Court: Missouri Court of Appeals
• Parties: MULCAHY v. TERMINAL R. ASS'N OF ST. LOUIS.<SMALL><SUP>*</SUP></SMALL>

123 S.W.2d 235

MULCAHY v. TERMINAL R. ASS'N OF ST. LOUIS.^*

No. 24910.

St. Louis Court of Appeals. Missouri.

January 3, 1939.

Rehearing Denied January 17, 1939.

Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Law by Bridget Mulcahy, dependent of Robert Mulcahy, deceased employee, to recover for the death of Robert Mulcahy, deceased employee, opposed by the Terminal Railroad Association of St. Louis, employer and self-insurer. From a judgment of the circuit court affirming an award of the Workmen's Compensation Commission, denying compensation on ground that the case was exclusively covered by the Federal Employers' Liability Act, the claimant appeals.

Judgment affirmed.

Maurice Schechter and H. G. Whelan, both of St. Louis, for appellant.

T. M. Pierce, J. L. Howell, William A. Thie, and Walter N. Davis, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is a proceeding under the workmen's compensation law (Secs. 3299-3376, R.S. Mo.1929, Mo.St.Ann. §§ 3299-3376, pp. 8229-8294), the appeal being by the dependent widow from the judgment of the Circuit Court of the City of St. Louis affirming an award of the commission denying compensation to the widow upon the ground that the case was exclusively covered by a federal law, by which was meant the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59.

The deceased, Robert Mulcahy, was in the employ of the Terminal Railroad Association of St. Louis as a watchman in and about its yards in the City of St. Louis, Missouri. His duties were, in general, to protect cars and other railroad property, either on or off the yards, against pilferage; to keep trespassers off the property and trains; to see that the car doors of trains passing through his territory were properly sealed; and to look out for and report defects in tracks, rails, switches, and the like. While it is in a sense a part of the duty of every employee to protect the property of the association and to report any defects he may find in tracks and equipment, the record shows that the watchmen are "specifically" hired for that purpose; and in Mulcahy's case the matter of inspecting tracks and equipment was his "particular" duty, due to the fact that in his territory — differing from other sections of the yards where there were usually other men engaged at work — there was no one else to walk the high speed main line tracks, so that it fell to him alone "to walk those tracks at all times, to watch them for broken rails and so on". If he found an obstruction on the track, it was his duty to remove it; if he discovered a defect in any way connected with the main line, he was supposed to notify the proper authorities in order that they might remedy the situation; and if he came upon a broken switch, it was his duty to report the fact to either the trainmaster or the yardmaster.

Mulcahy of course had no duty to perform with respect to the repair or renovation of railroad equipment or the actual operation of engines or trains, though he was at times required to ride thereon, either for the purpose of protecting a train or shipment of freight in transit through the yards, or else as a means of conveyance from one point in the yards to some distant point where his duties as watchman might require him to be.

So far as his function as a special officer was concerned, Mulcahy had been issued a private watchman's badge by the police department of the City of St. Louis, and carried a pistol in a holster as does a regular police officer. He made arrests, and it was a part of his duty to his employer to appear in court as a prosecuting witness against such alleged offenders. Not only did he make arrests on the railroad premises, but it was also his duty to pursue any one seen taking property away from the tracks, and to question and, if necessary, arrest such person off the property.

Throughout the evidence are frequent references to four connecting yards of the association, the Jefferson yards, the Atlantic yards, the Rankin yards, and the Compton yards, all deriving their names on account of their propinquity to certain public streets of the City of St. Louis abutting upon the corresponding sections of the railroad premises. From east to west the yards lie in the order named, save that the Compton yards are generally to the north of the Rankin yards. All of the yards are used for the making up and breaking up of trains. The Jefferson and Rankin yards are given over primarily to the servicing and renovation of passenger coaches and equipment belonging to particular railroad companies and assigned to particular destinations, while the Compton yards are utilized for storage and the loading and unloading of freight which may have come into the yards from anywhere in the country or may be destined for shipment to any point in the country. Save for the main line tracks, there appears to be nothing in the Atlantic yards except the four lead tracks which extend up into and constitute means of ingress and egress for the Rankin and Compton yards. The important thing, however, at least for the purposes of this case, is that all of the tracks, whether main lines, switches, or yard tracks, were shown to be in continuous and indiscriminate use in both interstate and intrastate commerce, but with the interstate commerce comprising eighty per cent of the business handled by the association.

Mulcahy was specially assigned to the Atlantic yards, working from 6:00 p. m. to 6:00 a. m. in the territory ten blocks in length between Twenty-first Street on the east and Montrose Avenue on the west.

Atlantic Street, from which the yards adjacent to it take their name, is a short street, only two blocks in length, lying immediately north of and parallel with the tracks between Ewing Avenue and Montrose Avenue, where it runs into the railroad yards at that point. It is a narrow street, though paved for vehicular traffic, and while it itself is but sparsely inhabited, the neighborhood a half block to the north is thickly populated by colored people.

Shortly after 5:00 o'clock on the morning of November 8, 1935, Mulcahy's dead body was found lying in Atlantic Street at a point about one hundred feet west of Ewing Avenue. Death had been caused by a gunshot wound, the autopsy revealing that the bullet had entered the forehead and emerged at the back of the head. There were no other marks of violence on the body, and there were no powder burns about the wound. The body was lying with the head towards the east and the feet towards the west. The coat and sweater were open; Mulcahy's pistol, which had not been fired, was in his holster; and his billy or night stick was lying underneath him on the ground. His ring, gold watch, private watchman's badge, and punch key were found on his person, but neither his wallet nor any money was found either in his clothing or in his locker, which was subsequently searched by other special officers in the employ of the association.

The only evidence with respect to the circumstances attending Mulcahy's death came from two persons residing in the immediate vicinity, who testified that at about 5:00 o'clock that morning they had heard a shot fired, unaccompanied by any shouting or outcries either before or after the gun was discharged. Upon discovering the body in the street some minutes later, one of these persons gave the alarm to two employees of the association who happened to be passing through the yards on a switch engine, and subsequently the police were notified and came and took charge of the situation.

As regards the identity of the murderer or the motive for the killing, the record is unfortunately but necessarily silent, nor was there any direct evidence adduced as to what Mulcahy was doing out upon Atlantic Street at the moment. It did appear, however, that at 1:00 o'clock that morning he had been directed by his superior to go over to the Compton and Rankin yards after 4:00 o'clock for the purpose of giving the yards "the once over" in the place of the regular watchman in that territory who was temporarily off duty; that one of the routes he might have selected to take him there would have been by way of Atlantic Street; and that subsequently, around 4:00 o'clock, in the course of a conversation between Mulcahy and the yard foreman when the two happened to meet near Ewing Avenue, Mulcahy had stated to the yard foreman that he had to go "to the west end" and had "headed towards Compton". It also appeared that after Mulcahy had completed his inspection of the Compton and Rankin yards and the equipment stationed therein, he was expected "to go back to his own yard" for the purpose of resuming his usual duties, one of which was the duty, under a "standing order", of protecting an interstate coal train which was due in the lower end of the yards in the course of the early morning, but did not arrive on this particular date until some time after Mulcahy's death had taken place.

The question for our determination on this appeal is whether, in the light of the above facts, there was a substantial basis in the evidence for the commission's finding that the case fell within the purview of the Federal Employers' Liability Act. If so, then that act, and not...