Rissell v. St. Louis-S.F. Ry. Co.

• Citation: 81 S.W.2d 621
• Decision Date: 17 April 1935
• Docket Number: No. 32221.,32221.
• Parties: E.L. RISSELL v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.
• Court: United States State Supreme Court of Missouri

81 S.W.2d 621

E.L. RISSELL v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.

No. 32221.

Supreme Court of Missouri.

Division One, April 17, 1935.

Appeal from Polk Circuit Court. — Hon. C.H. Skinker, Judge.

REVERSED AND REMANDED.

Joseph W. Jamison, Henry S. Conrad, L.E. Durham and Hale Houts for appellant.

(1) The court erred in not directing a verdict for the defendant because of the absence of evidence that plaintiff was employed in interstate commerce at the time of his injury. (a) Plaintiff bottomed his case upon the Federal Employers' Liability Act as well as the Federal Safety Appliance Act and in order for him to recover it was necessary for him to prove that he was employed in interstate commerce at the time of his injury. 45 U.S.C.A., secs. 2, 51-59; Texas & Pac. Ry. v. Rigsby, 241 U.S. 33; Schlemmer v. Ry. Co., 220 U.S. 596; San Antonio Ry. v. Wagner, 241 U.S. 481; High v. Railroad, 318 Mo. 451; Denver & R.G. Railroad v. Arrighi, 129 Fed. 347; Flanigan v. Ry. Co., 108 Kan. 138; Jarvis v. Railroad, 327 Mo. 440; Poindexter v. Ry. Co., 319 Mo. 290; Illinois Cent. Railroad v. Behrens, 233 U.S. 473. (b) Furthermore, it was necessary for plaintiff to bottom his case upon the Federal Employers' Liability Act. Unless he was employed in interstate commerce at the time so as to make the Employers' Liability Act applicable, plaintiff, under his own evidence, as a matter of law, was guilty of contributory negligence, precluding recovery under the Safety Appliance Act. 45 U.S.C.A., secs. 2, 8; Denver & R.G. Railroad v. Arrighi, 129 Fed. 348; Cash v. Sonken-Galamba Co., 322 Mo. 354; Talbert v. Ry. Co., 314 Mo. 363; Gilbert v. Ry. Co., 128 Fed. 533; Great Northern Ry. v. Wiles, 240 U.S. 444; 45 U.S.C.A., sec. 53; Schlemmer v. Railroad Co., 220 U.S. 599; Davis v. Kennedy, 266 U.S. 148; Hunter v. Candy Co., 307 Mo. 673; Moore v. Ry. Co., 146 Mo. 582; Caldwell v. Railroad, 181 Mo. 462; Smith v. Box Co., 193 Mo. 737; Elliot v. Railroad, 204 Mo. 18; Williams v. Cold Storage Co., 214 S.W. 390; Schmelzer v. Railroad, 262 Mo. 43; Morris v. Pryor, 272 Mo. 362; Flack v. Railroad, 285 Mo. 49. (c) There was no evidence that plaintiff was employed in interstate commerce at the time of his injury. Milburn v. Railroad, 56 S.W. (2d) 86; Illinois Cent. Railroad v. Behrens, 233 U.S. 478; Sailor v. Railroad, 322 Mo. 396; Fenstermacher v. Railroad, 309 Mo. 475, certiorari denied, 269 U.S. 576; Myers v. Railroad, 296 Mo. 239, certiorari denied, 261 U.S. 24; Hudson Railroad v. I.O.R.I.O., 239 Fed. 855; Allen v. Ry. Co., 53 S.W. (2d) 884; Chicago & N.W. Railroad v. Bolle, 284 U.S. 74; Chicago & E.I. Railroad v. Industrial Comm., 284 U.S. 296; New York, etc., Railroad v. Beuze, 284 U.S. 415; Erie Railroad v. Welsh, 242 U.S. 303; Illinois Cent. Railroad v. Peery, 242 U.S. 292; Phillips v. Ry. Co., 328 Mo. 246, certiorari denied, 284 U.S. 660; Grigsby v. Ry. Co., 3 Fed. (2d) 998, certiorari denied, 268 U.S. 704; Osborn v. Gray, 241 U.S. 21; State v. Railroad, 212 Mo. 677; Poindexter v. Ry. Co., 319 Mo. 390; Jarvis v. Railroad, 327 Mo. 440; Martin v. Ry. Co., 302 Mo. 519. (2) The court erred in giving plaintiff's Instruction 1. The instruction erroneously authorized a verdict for plaintiff without requiring the jury to find that plaintiff was employed in interstate commerce, and although plaintiff bottomed the case upon the Federal Employers' Liability Act and was precluded from recovery by his own negligence unless he was employed in interstate commerce within the meaning of said act. State ex rel. v. Cox, 310 Mo. 376; Lafferty v. Casualty Co., 287 Mo. 565; Martin v. Ry. Co., 202 Mo. 519; Poindexter v. Ry. Co., 319 Mo. 390; Jarvis v. Railroad, 327 Mo. 440; Illinois Cent. Railroad v. Behrens, 233 U.S. 478; Hall v. Coal & Coke Co., 260 Mo. 369; State ex rel. v. Ellison, 272 Mo. 571; Allen v. Ry. Co., 294 S.W. 87; Schubert v. American Press, 323 Mo. 306; and authorities 1 (a) and (b).

F.P. Sixer and H.A. Gardner for respondent.

(1) The evidence shows that plaintiff was engaged in interstate commerce, and that the cars were being coupled so that the train might proceed and be handled as a unit. Gandy v. Frisco, 41 S.W. (2d) 634. The setting out or handling of cars at Weaubleau did not change the destination of other cars in this train. Kepner v. Railroad Co., 15 S.W. (2d) 825; Railroad v. Zachary, 232 U.S. 260, 58 L. Ed. 591. As this train contained interstate cars then in transit, plaintiff's work in coupling same should be classified as interstate transportation. Patterson v. Railroad Co., 131 Atl. 484; Pennsylvania & Reading Railroad v. Hancock, 253 U.S. 284, 60 L. Ed. 907; New York Cent. v. Carr, 238 U.S. 261, 59 L. Ed. 1298; Morrison v. Terminal Railroad Assn., 57 S.W. (2d) 775; Youngstown & Ohio v. Halverstodt, 12 Fed. (2d) 995. Plaintiff's evidence that the train contained interstate cars was undisputed. Appellant offered nothing to the contrary and the testimony was, therefore, sufficient to sustain the verdict. Gilpin v. Railroad Co., 197 Mo. 325, 94 S.W. 869; Gilmore v. Modern Brotherhood of America, 186 Mo. App. 445, 171 S.W. 629; Berry v. Railroad Co., 26 S.W. (2d) 993. The fact that plaintiff was engaged in interstate commerce was not only shown by direct testimony but also by the circumstances. Farber v. Boston Ins. Co., 215 Mo. App. 564; Boggess v. Ry. Co., 207 Mo. App. 1; Winkle v. Peck Dry Goods Co., 132 Mo. App. 656; Steffens v. Fisher, 161 Mo. App. 386. (2) Plaintiff's Instruction 1 properly omitted a finding that plaintiff was engaged in interstate commerce. The undisputed evidence shows that plaintiff was so engaged and this should be accepted as true and presented a question of law for the court rather than one of fact for the jury. Pleasants v. Faut, 22 Wall. 120, 22 L. Ed. 780; Western & Atlantic v. Hughes, 278 U.S. 496, 73 L. Ed. 473; Gunning v. Cooley, 281 U.S. 90, 74 L. Ed. 720; Pa. Railroad v. Chamberlain, 288 U.S. 333, 77 L. Ed. 819; Quock-Ting v. United States, 140 U.S. 424, 35 L. Ed. 502; C. & O. Railroad v. Martin, 283 U.S. 209, 75 L. Ed. 983; Hull v. Littauer, 162 N.Y. 569, 57 N.E. 102; Hauss v. Railroad, 105 Fed. 733; McGill v. Miller, 37 S.W. (2d) 689; International Shoe Co. v. Federal Trade Comm., 280 U.S. 291, 74 L. Ed. 441; 1 Roberts on Fed. Liabilities of Carriers, sec. 461, p. 798; Natl. Bank of Commerce v. Bottolfson, 229 N.W. 385, 69 A.L.R. 896. This being a case under the Federal Employers' Liability Act for violation of Federal Safety Appliance Act, the Federal rule governs. Weber v. Terminal Railroad Assn., 70 S.W. (2d) 866; Pa. & Reading Railroad Co. v. Polk, 256 U.S. 332, 65 L. Ed. 958; Hardin v. Illinois Central, 70 S.W. (2d) 1075; Western & Atlantic v. Hughes, 278 U.S. 496, 49 Sup. Ct. 231, 73 L. Ed. 473. The Federal rule is that a motion to direct a verdict and demurrer to the evidence are tested by the same rule. Hardin v. Illinois Central, 70 S.W. (2d) 1075; C. & O. Railroad v. Martin, 283 U.S. 209, 75 L. Ed. 983; Morris v. Giddings, 115 U.S. 300, 6 Sup. Ct. 65, 29 L. Ed. 403; Hiatt v. Wabash, 69 S.W. (2d) 727; C.M. & St. P. Railroad v. Coogan, 271 U.S. 472, 70 L. Ed. 1041; B. & O. Railroad v. Groeger, 266 U.S. 521, 69 L. Ed. 419. This is likewise true of a request for peremptory instruction under Missouri practice. Thompson v. Main Street Bank, 226 Mo. App. 246, 42 S.W. (2d) 56; American Car & Foundry Co. v. Kettle-Hake, 236 U.S. 311, 59 L. Ed. 594. Whether the evidence presents a question of law or a question for the jury is a Federal question. C. & O. Railroad v. D'Atley, 241 U.S. 310, 60 L. Ed. 1021. The Missouri rule relied upon by appellant that plaintiff's evidence cannot be taken as true, even though undisputed, is modified by the further rule that where the evidence is all one way it is the duty of the court to instruct the jury to return a verdict. Trout v. Railroad Co., 39 S.W. (2d) 424; Reichanbach v. Ellerbe, 115 Mo. 588, 22 S.W. 573; Midwest Natl. Bank & Trust Co. v. Davis, 233 S.W. 406. An instruction properly omits the requirement that a jury find a fact even though essential to a recovery where the record indicates that it was not regarded as a matter in controversy. Ward v. American Ry. Express Co., 259 S.W. 514.

GANTT, P.J.

Action to recover damages for personal injuries. Plaintiff sued under the Federal Employers' Liability Act (45 U.S.C., Secs. 51-59) for a violation of the Federal Safety Appliance Act (45 U.S.C., Secs. 2, 8).

In substance the petition charged that plaintiff was an employee of defendant as brakeman; that at the time of the injury the defendant was engaged and the plaintiff employed in interstate commerce, and that the injury was caused by defendant using a car not equipped with a coupler and coupling device which would couple automatically by impact and without the necessity of plaintiff's going between the cars. The answer was a general denial. Judgment for plaintiff for $22,500, and defendant appealed.

[1] Defendant contends that there was no substantial evidence tending to show that at the time plaintiff was injured it was engaged and plaintiff employed in interstate commerce. The burden was upon plaintiff to so prove. [Jarvis v. Railroad, 327 Mo. 428, 440, 38 S.W. (2d) 602.] There was evidence tending to show the following:

Plaintiff was the head brakeman on defendant's northbound local freight train from Springfield, Missouri, to Kansas City, Missouri. The train contained a car of merchandise for the station Weaubleau. On arrival at said station plaintiff uncoupled the train four or five cars from the engine and immediately south of the merchandise car. On signal from him, the engine and four or five cars, with plaintiff aboard, moved northward beyond a switch stand. Plaintiff then connected the main track with a side track by operating the switch, and on signal from him the engineer moved the engine and cars, with plaintiff aboard, southward on the side track to the station platform, where plaintiff uncoupled and...