Powers v. Missouri Pac. Ry. Co.

• Decision Date: 24 November 1914
• Docket Number: No. 16426.,16426.
• Citation: 172 S.W. 1
• Parties: POWERS v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

172 S.W. 1

POWERS v. MISSOURI PAC. RY. CO.

No. 16426.

Supreme Court of Missouri, Division No. 2.

November 24, 1914.

Motion for Rehearing Denied and Motion to Transfer to Banc Overruled. December 23, 1914.

1. COURTS (§ 231)—MISSOURI—JURISDICTIONAL AMOUNT.

Where a money judgment is rendered, the amount of the judgment, if the appeal be taken by the debtor, or the difference between the judgment and the amount claimed, if it be taken by the judgment creditor, determines whether the Supreme Court or Court of Appeals has jurisdiction.

2. COURTS (§ 231)—MISSOURI—JURISDICTIONAL AMOUNT.

Where there was a verdict for defendant, plaintiff cannot, by an amendment to the petition after final judgment, but before appeal, reduce the amount claimed, and thus confer jurisdiction upon the Court of Appeals, instead of the Supreme Court.

3. MASTER AND SERVANT (§ 180)—INJURIES TO SERVANT—RAILROAD FELLOW SERVANT ACT—"OPERATING A RAILROAD."

A car repairer of a railroad company is engaged in the work of operating such railroad, within Rev. St. 1909, § 5434, abolishing the common-law fellow servant rule with respect to servants engaged in operating a railroad.

Appeal from St. Louis Circuit Court; Geo. H. Williams, Judge.

Action by John Powers against the Missouri Pacific Railway Company. From a judgment denying plaintiff's motion to set aside a nonsuit, plaintiff appealed to the St. Louis Court of Appeals. On transfer to the Supreme Court. Reversed and remanded.

This is a suit to recover damages for personal injuries received by plaintiff while in the employ of the defendant company. Trial was had in the circuit court of the city of St. Louis, and at the close of plaintiff's evidence the court sustained defendant's demurrer to the evidence, and permitted the plaintiff to take a nonsuit, with leave to move to set the same aside. Thereafter, and within proper time, plaintiff filed a motion to set aside the nonsuit and to grant him a new trial in the cause, which motion was by the court overruled. Several days thereafter, but during the same term of court at which plaintiff's motion for a new trial was overruled, the court, by order of record, permitted plaintiff to amend his petition by interlineation by changing the prayer for damages from $10,000 to $4,500, and thereafter permitted plaintiff to take an appeal to the St. Louis Court of Appeals. After the case reached the St. Louis Court of Appeals, that court, upon respondent's motion, transferred the cause to the Supreme Court, on the ground that the amount in controversy, at the time judgment was rendered in favor of defendant, was beyond the jurisdiction of the Court of Appeals. Plaintiff's evidence tends to establish the following facts: On the day the injury occurred plaintiff, together with a fellow workman, Mr. Krietemeyer, were in the employ of the defendant company doing repair work on cars located in defendant's repair yards near Compton avenue, in the city of St. Louis. Many tracks were located in this repair yard, and a portion of same was covered by a long, rough shed, open on the sides, but covered by a roof. The machine shops of defendant company were located some 300 feet distant from the repair yard. Cars needing repair were shoved into this repair yard over the railway tracks therein located. The heavy repair work was done at the yards near Compton avenue, and the light repair work at the repair yards at Twenty-First street. At the time of the injury plaintiff and his coworker were engaged in repairing the coupling on one of the cars located in this repair yard. The trucks had been removed from under the car, and the car was supported by barrels or trusses. The trucks were located on the track ahead of the car, and after the repair work was finished the trucks were to be rolled back under the car, so that the car could be taken out and placed in a train. In repairing the car in question, it became necessary to drive the brake pin, which had been bent, out of the coupling. In doing this plaintiff held a portion of the coupling in such position that his coemployé, Mr. Krietemeyer, could strike the brake pin with a maul. Krietemeyer, without looking for any obstructions that the maul might encounter in being swung, made a swing with the maul, and in so doing the maul engaged the brake guide above the coupling, causing the maul to glance out of its course and strike plaintiff's left hand, mashing and breaking the bones in the third finger thereof. Afterwards blood poisoning developed in the injured finger, and it was necessary to amputate the finger at the middle joint. Plaintiff was laid up nearly a year with his injury, and it became necessary to cut open his hand to drain the pus. As a result of the injury, he was rendered unable to follow his former occupation as a car repairer, and had been rendered unable to secure employment of any kind on account of his disability.

Appellant makes the following contentions: (1) That the St. Louis Court of Appeals erroneously transferred this case to the Supreme Court; (2) that at the time of his injury appellant was engaged in the work of operating respondent's railroad, as was his coservant, Krietemeyer, within the language and intent of section 5434, R. S. 1909, and that therefore the trial court erred in overruling his motion to set aside the nonsuit and for new trial.

A. R. & Howard Taylor, of St. Louis, for appellant. James F. Green, of St. Louis, for respondent.

WILLIAMS, C. (after stating the facts as above).

I....