Poindexter v. C., C. & St. L. Ry. Co.

• Decision Date: 03 March 1928
• Docket Number: No. 26735.,26735.
• Citation: 4 S.W.2d 1065
• Parties: CORA A. POINDEXTER, Administratrix of Estate of HARRY GRANT POINDEXTER, v. CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

4 S.W.2d 1065

CORA A. POINDEXTER, Administratrix of Estate of HARRY GRANT POINDEXTER, v. CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY, Appellant.

No. 26735.

Supreme Court of Missouri. Division One.

March 3, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.

REVERSED.

Charles A. Houts and D.E. Keefe for appellant; H.N. Quigley and S.W. Baxter of counsel.

(1) Where an employee sues to recover damages, under the Federal Employers' Liability Act, he is required to prove that he and his employer were, at the time he was injured, engaged in interstate work, or work so closely connected with interstate commerce as to form a part of it. Ill. Cent. Railroad v. Behrens, 233 U.S. 473; Mondou v. Railroad Co., 223 U.S. 1; Seaboard Air Line v. Moore, 228 U.S. 433; Erie Railroad Co. v. Welsh, 242 U.S. 304; N.Y. Central Railroad v. Carr, 238 U.S. 260; Shanks v. Railroad, 239 U.S. 556; St. L., S.F. & T. Railroad v. Seale, 229 U.S. 156; Penn. Railroad v. Knox, 218 Fed. 746; Meyers v. Railroad, 296 Mo. 239; Bradbury v. C.R.I. & Pac. Railroad, 149 Iowa, 51; Lacasse v. Railroad, 64 So. 1012; Winters v. Railroad, 243 U.S. 353; North Pac. Railroad v. Maerkl, 198 Fed. 1. (2) The burden of proof is on the party holding the affirmative of the issue to establish the substance of his contentions by the preponderance of the evidence. 16 Cyc. 928: 10 R.C.L. 898; Smith v. Dodson, 51 Ark. 447; Chi. Railroad Co. v. Provolt, 42 Colo. 103; Bridger v. Exchange Bank, 126 Ga. 821; Lambert v. Alcorn, 144 Ill. 313; Kelley v. Kelley, 161 Mass. 111; Houghtalling v. Ball, 19 Mo. 84; Allan v. Railroad, 82 Neb. 726; Osborn v. Blackburn, 78 Wis. 209; Buesching v. Gas Co., 73 Mo. 219.

Charles P. Noell for respondent; Glen Mohler of counsel.

(1) Deceased, inspecting and preparing the train of cars on track 9 for delivery to the Pennsylvania Railroad, one of which cars in said train was loaded with gravel en route from the State of Indiana to the State of Illinois, was engaged in interstate commerce. New York Central v. Carr, 238 U.S. 261; Erie Railroad Co. v. Winfeld, 244 U.S. 170; St. Louis & San Francisco Ry. Co. v. Seale, 229 U.S. 156; Hines v. Logan, 269 Fed. 105; Reap v. Hines, 273 Fed. 88; Davis v. Dowling, 284 Fed. 670; B. & O. Railroad v. Flechtner, 300 Fed. 318; Erie Railroad v. Russell, 183 Fed. 722; Hester v. Railroad Co., 254 Fed. 787; Midway Nat. Bank v. Davis, 233 S.W. 406; Hood v. B. & O. Railroad, 259 S.W. 471; Laughlin v. Mo. Pac. Ry. Co., 248 S.W. 949; Brimer v. Davis, 245 S.W. 404; Evans v. U.S. Railroad Administration, 182 N.Y. Supp. 310; Texas & Pacific Ry. Co. v. Sherer, 183 S.W. 404; Stone v. N.Y. Central Co., 207 N.Y. Supp. 353. (2) Evidence showing that two empty box cars composing part of the train of cars on track 9 were traveling under order number 20 to Turner Bros. Glass Company for the loading of interstate shipments, followed by such loading and movement in interstate commerce, is ample to take to the jury the question whether deceased was engaged in interstate commerce, and was an act directly and immediately connected with the interstate business of appellant to form a part or necessary incident thereof. LaLone v. Merchant's Bridge Term. Ry., 293 S.W. 379; Christy v. Wabash. 195 Mo. App. 236; Aldread v. Northern Pac. Railroad Co., 93 Wash. 210; Breske v. Railroad Co., 115 Minn. 386; Mulstay v. Railroad Co., 195 Iowa, 514; Hester v. Railroad Co., 254 Fed. 798; Davis v. Dowling, 284 Fed. 670; Penn. Railroad Co. v. Morrison, 3 Fed. (2nd) 986; White v. Jackson, 221 Ill. App. 131; Jeneary v. Traction Co., 306 Ill. 392; Chicago Junc. Ry. Co. v. Indus. Bd., 277 Ill. 515. (3) With respect to whether the movement was in interstate commerce, the test is: Was the work being done independently of the interstate commerce in which the company was (admittedly) engaged or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting on the carrier? Kinzell v. Ry. Co., 250 U.S. 133: Southern Pac. Co. v. Indust. Acc. Com., 251 U.S. 263; C.B. & Q. Railroad Co. v. Harrington, 241 U.S. 180. It is also settled that the doing of work which has for its immediate purpose the furthering of the conduct of interstate commerce constitutes an employment in such commerce within the meaning of the act. Kinzell v. Railway Co., 250 U.S. 133.

RAGLAND, J.

Plaintiff's intestate, Harry Poindexter, was in the employ of defendant as car inspector and light repair man in its switchyard at Terre Haute, Indiana. On the morning of November 4, 1922, while he was standing in an open space between two freight cars on one of its tracks, engaged in repairing a coupler, defendant's servants, negligently it is alleged, kicked two other cars in on the same track and against the string of cars on one side of the open space, causing them to run over him. His death instantly followed. Respondent seeks a recovery under the Federal Employers' Liability Act. In the trial court she had judgment for $17,500.

The crucial question in the case, the only one of any real importance, is whether Poindexter at the time of his injury and death was employed in interstate commerce. Such facts as have a bearing on that question will therefore be first stated and considered. The conclusion reached with respect to them may render the consideration of others unnecessary.

At the time of the occurrences herein referred to, appellant was a common carrier by rail and as such was engaged in both interstate and intrastate commerce. It maintained a large switchyard at Terre Haute, Indiana, which consisted in part of a main lead track with which other tracks, both leads and stubs, connected by means of switches. The tracks other than the main lead were numbered and each was used for a particular purpose. In distributing cars to the several tracks the switching crew would pull them up to the west end of the main lead and then push or kick them back east through the switches.

The Pennsylvania Railroad Company, likewise a carrier engaged in both interstate and intrastate commerce, also maintained an extensive switchyard at Terre Haute. Between that company and the appellant there existed an arrangement for the interchange of cars; pursuant to such arrangement an engine and crew of the Pennsylvania would at the end of each day, near midnight, bring over to appellant's yard all cars received at the Pennsylvania yard intended for appellant, and take back all cars in appellant's yard intended for the Pennsylvania. In furtherance of the plan of interchange just noted, appellant's switching crews placed all cars intended for the Pennsylvania on track No. 9 in its yard. The cars so placed included cars of all descriptions — loaded, empty, interstate, intrastate, those deliverable to the Pennsylvania as a connecting carrier and those which would be at "home" when they reached the Pennsylvania yards. Track No. 9 was used for no other purpose. The cars placed on it were all coupled up before the close of the day, so that the Pennsylvania crew would have nothing to do but attach their engine preparatory to starting them on their journey to the Pennsylvania yards.

It was Poindexter's duty to inspect all cars in appellant's switchyard, and to repair such bad-order cars as he found, if such cars could be put in condition by a "light repair." He worked from 7:15 in the morning until 3:15 in the afternoon. On the morning of November 4, 1922, a local freight train which had come in from Indianapolis during the night or early morning was standing on track No. 1. In this train there were two empty Pennsylvania coal cars. A knuckle on the end of one of them was out of order, or else it was an emergency knuckle which it was necessary to replace with a regulation knuckle. Whether it was the one or the other is not material. The condition of the coupler was either observed by Poindexter while making his rounds, or his attention was called to it by a member of the switching crew which came on duty at the same time he did. In any event he requested the foreman of the crew to leave an open space between that car and other cars when it was placed on track 9, so that he could put the coupler in order. The switching crew then began "breaking up" the local freight train. Between 9:30 and ten o'clock that...