Owens v. St. L.S.F. Ry. Co.

• Decision Date: 04 February 1932
• Docket Number: No. 4979.,4979.
• Citation: Owens v. St. L.S.F. Ry. Co., 46 S.W.2d 930, 226 Mo.App. 226 (Mo. App. 1932)
• Parties: JOHN OWENS, RESPONDENT v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

46 S.W.2d 930

JOHN OWENS, RESPONDENT v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT.

No. 4979.

Springfield Court of Appeals. Missouri.

February 4, 1932.

Rehearing denied March 11, 1932.

Appeal from Lawrence County Circuit Court. — Hon. Robert Stemmons, Special Judge.

AFFIRMED.

E.T. Miller and Mann, Mann & Miller for appellant.

Sizer & Gardner for respondent.

COX, P.J.

Action for damages under the Federal Employers' Liability Act for an injury received by plaintiff while working on a water crane through which water was furnished to engines pulling trains on defendant's tracks. Plaintiff recovered $3000. Defendant appealed.

Appellant relies chiefly on two points: First: That the evidence does not show that plaintiff at the time of the accident in which he was injured was employed in interstate commerce and for that reason he cannot recover in this form of action. Second: That the evidence fails to show that the plaintiff's injury was caused by defendant's negligence.

We shall consider these in the order named. The facts upon which the question of whether plaintiff was employed in interstate commerce at the time he received the injury are substantially as follows: Defendant operates a railroad that passes through several states and is engaged in both interstate and intrastate commerce. At Lindenwood, at or near St. Louis, defendant maintained a water crane through which water was supplied to engines which hauled trains in both interstate and intrastate commerce. This water crane stood near the track and consisted of an upright pipe with what is called a goose neck at the top to which was attached a pipe which extended laterally a sufficient distance to reach an engine on the track and through which water was supplied to the engine. The upright part of the crane was in sections with flanges or protrusions at the joints through which bolts passed to fasten the joints together. The crane rested on a foundation which enclosed the pipes through which the water passed to a connecting pipe in the crane and thus up to the lateral or goose neck part of the crane through which it passed to a pipe that conveyed it to the engine on the track. The upright portion of the crane was about fourteen feet high. At a point not far above the ground was a joint, in the flanges of which was a slot in which an iron plug was inserted to prevent the crane from turning and hold it stationary. When it was desired to pass water to an engine this iron plug was lifted out of the slot and the crane turned and placed in such a position as to allow the outer end of the lateral pipe to connect with the engine and permit water to be passed through it to the engine. When not in use for that purpose the crane was turned so the lateral part of it at the top was parallel with the track and the iron plug then inserted in the slot to hold it in that position. This crane had, in some way, been broken off a short distance above the ground and was taken to the shop and its parts repaired so that it could be replaced and again be used as before to supply water to engines on the track. This repair work in the shop required some six days. When the parts were returned to the place where the crane stood before being broken, this plaintiff and others working under a foreman were proceeding to replace the parts of the water crane which had been repaired. They had the work almost completed. The upright pipe and goose neck and the lateral pipe had been placed together and in position when plaintiff placed a ladder against the lateral pipe and climbed up the ladder to place a bolt in position at the top when the crane turned and the ladder fell with him and he was injured.

Do these facts show that plaintiff was working in interstate commerce when he was injured?

The Federal statute provides that "Every common carrier, by railroad, while engaged in commerce between any of the several states ... shall be liable in damages to any person suffering an injury while he is employed by such carrier in such commerce."

In construing this statute, the courts all agree that to recover under it, the employee at the time of his injury "must be engaged in interstate transportation or some work so closely related to it as to be practically a part of it." but inst what facts will meet this test is not always easy to determine. Each case must rest on its own facts. [Cudahy Packing Co. v. Paramore, 263 U.S. 418, 68 L. Ed. 366.]

We briefly note a few of the many cases cited by appellant in which recovery was denied because the injured party was not at the time of his injury actually engaged in "interstate transportation or some work so closely related to it as to be practically a part of it."

A party engaged in building something new, which, when completed, will be used in interstate commerce. [Williams v. Schoff, 282 Mo. 497, 222 S.W. 412; Raymond v. Chicago, M. & St. P.R. Co., 243 U.S. 43, 61 L. Ed. 585; N.Y.C.R. Co. v. White, 243 U.S. 188, 61 L. Ed. 667.]

A party mining coal in a mine belonging to a railroad which coal was to be hauled by freight trains to a place where it could be used by the railroad in supplying engines engaged in interstate commerce. [Delaware & W.R.R. v. Yurkonis, 238 U.S. 439, 59 L. Ed. 1397.]

A switchman removing a car of coal from a storage track to a car chute to be there unloaded and then used in engines engaged in both interstate or intrastate commerce as occasion should demand. Chicago B & Q.R.R. Co. v. Harrington, 241 U.S. 177, 60 L. Ed. 941; Lehigh Valley R.R. Co. v. Barlow, 244 U.S. 183, 61 L. Ed. 4070.]

A party repairing a car in a shop which car might next be used in interstate or intrastate commerce as occasion should demand. [Minn. St. Louis R. Co. v. Winters, 242 U.S. 353, 61 L. Ed. 358.]

A party working in a machine shop helping to move and relocate a shaft through which power was communicated to a machine used in repair work. [Shanks v. R.R., 239 U.S. 556, 60 L. Ed. 436.]

A party selecting telegraph poles from a pile, loading them on a flat car to be hauled several miles to another station and there to be unloaded by other parties and used to repair a telegraph line. [Fenstermacher v. R.I.R.R., 309 Mo. 475, 274 S.W. 718; Fenstermacher v. R.I.R.R., 70 L. Ed. 420.]

In Kelley v. R.R., 238 Fed. 95, the Federal Circuit Court of Appeals of the Third Circuit held the deceased was not engaged in interstate transportation at the time he was killed. The deceased in that case was walking on the railroad track toward a coal chute for the purpose of repairing it but had not reached it nor had he done any work upon it. A petition for writ of certiorari to the Supreme Court was filed and the writ denied but no opinion filed. [See 61 L. Ed. 945.] Had the deceased reached the coal chute and had been actually engaged in repairing it at the time of his injury the result might have been different. The distinction between that case and this is that in this case the employee was actually at work repairing the water crane through which water passed directly to the engine when injured while in the Kelley case he was not at work on the coal chute through which coal was passed to the engine but was merely approaching it with the intent to begin work upon it.

In Gallagher v. N.Y.C.R.R. Co., 167 N.Y. Sup. 480, affirmed in 119 N.E. 1044, certiorari denied, 63 L. Ed. 421, by the United States Supreme Court but no opinion filed. Deceased was swinging a sledge hammer to cut the head of a bolt in a trestle over which cars were run to the coal pockets when he lost his balance and fell about sixteen feet to the ground. The facts are stated in 119 N.E. 1044. The trestle was not used in interstate commerce but was a stationary track over which cars of coal were hauled up and unloaded in the coal pockets to be kept there until taken therefrom for the use of engines on the track which were engaged in both interstate and intrastate traffic. How the coal was passed from these pockets to the engines is not stated. We think that, presumably, it was passed from these pockets through chutes that when in use were directly connected with the engine to be supplied with coal. The chute would have contact with the engine but the coal pocket would not; neither would the trestle over which coal was hauled up to be unloaded into the pockets have any contact with the engine on the track.

In neither the Gallagher nor the Kelly case was the party working upon an appliance that had direct connection with engines on the track and that fact distinguishes both those cases from the case at bar.

In Erie R.R. Co. v. Szary, 253 U.S. 86, a party charged with the duty to supply engines with sand used a stove to dry the sand. When injured he was carrying cinders from this stove to a pit across the track. The Supreme Court held that he was engaged at the time in interstate commerce. In Erie R.R. Co. v. Collins, 253 U.S. 77, 64 L. Ed. 790, the injured party was pumping water into a water tank from which it was passed to engines as needed. The Supreme Court held he was engaged in interstate commerce. Both these cases were overruled by the Supreme Court on January 4, 1932, in the case of Chicago and Eastern Ill. R.R. Co. v. Industrial Commission of Illinois and Joe Thomas. At this writing that case has not yet appeared in the Advance Sheets of the Federal Reporter. In this last case Thomas was attempting to oil an electric motor while it was running and was injured by having his hand caught in the gears. The electric motor furnished power for hoisting coal into a chute to be taken therefrom for the use of locomotive engines principally employed in the movement of interstate freight. The contention was made that upon the authority of the Szary and Collins cases it should be held that...