Phillips v. Union Terminal Railway Co.

• Decision Date: 24 June 1931
• Docket Number: No. 28806.,28806.
• Citation: 40 S.W.2d 1046
• Parties: GEORGE M. PHILLIPS v. UNION TERMINAL RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

40 S.W.2d 1046

GEORGE M. PHILLIPS v.UNION TERMINAL RAILWAY COMPANY, Appellant.

No. 28806.

Supreme Court of Missouri.

Division One, June 24, 1931.

Appeal from Buchanan Circuit Court.— Hon. Sam Wilcox, Judge.

REVERSED.

Brown, Douglas & Brown for appellant.

There was no evidence in the case tending to prove that defendant was in any way engaged in the movement or handling of cars employed in interstate commerce or work pertaining thereto.The movement of the interstate cars to the yards of the Chicago Great Western Railroad Company had been completed, and plaintiff had returned with the engine to make certain movements of the cars standing upon the Sand Company switch which were employed in intrastate commerce.It was these cars plaintiff was engaged in switching when he was injured.It was the duty of the court to declare as matter of law that under the pleadings and the evidence, plaintiff was not entitled to a verdict.Therefore, the demurrers offerred by the defendant at the close of plaintiff's case and again at the close of all the testimony in the case should have been sustained.Illinois Central Railroad Co. v. Peery, 242 U.S. 292, 61 L. Ed. 309;Eric Railroad Co. v. Welsh, 242 U.S. 303, 61 L. Ed. 319;Illinois Central Railroad Co. v. Behrens, 233 U.S. 473, 58 L. Ed. 1051;C.B. & Q. Railroad Co. v. Harrington, 241 U.S. 177, 60 L. Ed. 941;Grigsby v. Railway Co., 3 Fed. (2d) 988(certiorari denied, 69 L. Ed. 1166);Myers v. Railroad Co., 296 Mo. 239, 246 S.W. 257;Martin v. Ry. Co., 302 Mo. 506, 258 S.W. 1023.

Mytton, Parkinson & Norris for respondent.

The question whether plaintiff at the time he was injured was engaged in work on behalf of the defendant of making a movement of cars in interstate commerce, or in work so closely related thereto as to be practically a part thereof was properly submitted to the jury under appropriate instructions.Defendant's demurrer to the evidence was therefore properly overruled by the court.Erie Railroad Co. v. Winfield, 244 U.S. 170;Shanks v. Railroad Co., 239 U.S. 556;New York Central & Hudson River Railroad Co. v. Carr, 238 U.S. 260;North Carolina Railroad Co. v. Zachary, 232 U.S. 246;Sullivan v. Ry. Co., 23 Fed. (2d) 323;Youngstown & O. Railroad Co. v. Halverstodt, 12 Fed. (2d) 995;Davis v. Dowling, 284 Fed. 670;Director General of Railroads v. Ronald, 265 Fed. 138;Pittsburg C.C. & St. L. Ry. Co. v. Glinn, 219 Fed. 149;Stottle v. Ry. Co., 18 S.W. (2d) 433;Laughlin v. Ry. Co., 248 S.W. 949;Roberson v. Ry. Co., 213 S.W. 873;Roberson v. Railroad Co., 201 Mo. App. 672;Spaw v. Terminal Ry. Co., 198 Mo. App. 552;Texas & Pac. Ry. Co. v. Lester, 207 S.W. 555;Mulstay v. Ry. Co., 192 N.W. 439;Wabash Ry. Co. v. Whitcomb, 154 N.E. 885;Patterson v. Railroad Co., 131 Atl. 485;Hatch v. Portland Terminal Co., 131 Atl. 5;McDonald v. Railroad Co., 123 Atl. 591;Callahan v. Railroad Co., 106 Atl. 37.

GANTT.P.J.

This case came to me on reassignment.Action under the Federal Employers' Liability Act to recover damages for personal injuries.The jury returned a verdict for $10,000.Judgment accordingly, and defendant appealed.

Defendant conducts a terminal railroad in St. Joseph, Missouri.Its tracks, seven miles in length, extend from the southern to the northern part of the city.The Pioneer Sand Company's yard is west of defendant's main line and cast of the Missouri River.A switch track from the main line extends in a southwesterly direction into said yard.A wagon road from the north parallels the switch track, turns west crossing the track and extends into said yard.Sand from the river is stored in large quantities on the east side of a barricade along the east side of and close to the switch track, and between the track and roadway.Cars are loaded from the sand so stored.Plaintiff was foreman of a switching crew of defendant.On July 28, 1927, he was directed by a switch list, furnished by the yard office, to do certain switching and transferring in and about the yards.In performing those duties he transferred from a string of cars to the Sand Company switch track, three empty coal cars to be loaded with sand.He then, over defendant's main line, proceeded north about two miles with five cars for delivery to the Great Western Railroad Company.After delivering those cars, he returned with the engine and crew to the Sand Company switch track, coupled the engine to the north empty coal car, moved the three empty coal cars south, and coupled the south empty to a car loaded with sand.He testified that he then gave the engineer a signal to move south; that the engineer disobeyed the signal by moving the cars north; that in walking, he slipped in the loose sand on and along the east side of the track, and for that reason he held to the grab iron on the southeast side of the south empty car; that the movement of the cars north, on his signal to the engineer to move south, caused him to stumble through the loose sand and his foot to be caught and held in wire covered by sand; that this situation and the continued movement of the cars north forced him to loosen his hold of the grab iron, thereby causing him to fall under the car.This resulted in permanent injury to plaintiff.

Some of the cars for delivery to the Great Western were in interstate commerce.The other cars handled by the crew as directed by the switch list were in intrastate commerce.

It is alleged (1) that at the time of the injury, plaintiff and defendant were engaged in interstate commerce; (2) that defendant negligently permitted wire with which its employees were likely to become entangled, to extend under the sand and along the east side of the track; (3) that defendant negligently moved the cars northward, thereby causing plaintiff to become entangled in the wire.

The answer was a general denial with pleas of assumption of risk and contributory negligence, and with an affirmative plea that plaintiff and defendant at the time were not engaged in interstate commerce.The trial proceeded as if the reply was a general denial.

The principal question for consideration is stated by defendant as follows:

"Plaintiff's case was prosecuted solely upon the theory that some of the cars delivered to the Great Western yards were interstate cars, and that the switching of the sand cars by plaintiff, on the return of the engine from the Great Western yards, which were not being moved in interstate commerce, was merely a part of the movement and delivery of the cars to the yards of the Great Western Company.

"The case was defended upon the theory that after the delivery of the interstate cars to the yards of the Great Western Companyplaintiff had returned to the Sand Company switch for the purpose of placing the three empty cars in the Sand Company yards and pulling out the car loaded with sand for the purpose of taking it back with him to track number three, there to be delivered to the Burlington Company, and that as all the Sand Company cars were destined to points in the State of Missouri, plaintiff was engaged in switching intrastate cars, and that he must look to the Workmen's Compensation Act for redress for the injuries sustained by him.

"The defendant also contends that even if the plaintiff had not intended to do anything more than push the three empty...