Rogers v. Mobile & O. R. Co.

• Decision Date: 09 July 1935
• Citation: 85 S.W.2d 581,337 Mo. 140
• Parties: G. H. Rogers, Administrator of the Estate of John F. Rogers, v. Mobile & Ohio Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

85 S.W.2d 581

337 Mo. 140

G. H. Rogers, Administrator of the Estate of John F. Rogers, v. Mobile & Ohio Railroad Company, a Corporation, Appellant

Supreme Court of Missouri

July 9, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Charles W Rutledge, Judge.

Affirmed.

Cottrell Fox and Carl Fox for appellant; Roberts P Elam and Rufus Creekmore of counsel.

Plaintiff's case was grounded on the Federal Employers' Liability Act. But at the time Rogers was injured he was engaged solely in transportation of intrastate freight and cars. The mere facts that shortly before he had been engaged in interstate transportation, which had been suspended, and expected shortly after to re-engage in interstate transportation, were wholly immaterial and did not in any wise change or affect the nature of his work in intrastate transportation at the time he was injured. Ill. Cent. Railroad Co. v Behrens, 233 U.S. 478; Erie Railroad Co. v. Welsh, 242 U.S. 306; Shanks v. Railroad Co., 239 U.S. 558; Chicago & E. I. Railroad Co. v. Industrial Comm., 284 U.S. 299; Chicago & N.W. Railroad Co. v. Bolle, 284 U.S. 78; Pope v. Railroad Co., 54 F.2d 575; Ill. Cen. Railroad Co. v. Peery, 242 U.S. 292. In order to come within the Federal Act work that is not actual interstate transportation must be "so closely related to such transportation as to be practically a part of it," and Rogers' work at the time of his injury was not of that character. Louisville & N. Railroad Co. v. Parker, 242 U.S. 13; Pennsylvania Co. v. Donat, 239 U.S. 50; Erie Railroad Co. v. Winfield, 244 U.S. 170; St. Louis, S. F. & Tex. Railroad Co. v. Seale, 229 U.S. 156; Southern Ry. Co. v. Puckett, 244 U.S. 571; Birmingham Belt Railroad Co. v. Dunlap, 58 F.2d 951; New York Cen. Railroad Co. v. Carr, 238 U.S. 260.

R. J. Horsefield and C. O. Inman for respondent.

(1) Plaintiff was engaged in interstate commerce at the time he was injured. (a) It was necessary to set out the intrastate gravel cars before the interstate train could proceed with its interstate business. Plaintiff was upon the house track for other purposes than the mere spotting of these cars, namely, to disconnect the engine so it could return to the interstate train and to replace the derail so as to prevent the cars from rolling out onto the passing track or the main line and interfering with the movement of the interstate train. He was, therefore, engaged in work so closely related to interstate transportation as to be practically a part of it. N. Y. Cen. Railroad Co. v. Carr, 238 U.S. 260; Shanks v. Railroad Co., 239 U.S. 556; Louisville & N. Railroad Co. v. Parker, 242 U.S. 13; Penn. Railroad Co. v. Donat, 239 U.S. 50; Southern Ry. Co. v. Puckett, 244 U.S. 571; Brum v. Ry. Co., 74 S.W.2d 566. (b) An employee is deemed to be engaged in work so closely related to interstate transportation as to be a part of it when at a place where he is required to be for the performance of such duties, or while going to a place where work in interstate transportation is to be performed by him. Pederson v. Railroad Co., 229 U.S. 146; St. L., S. F. & T. Ry. Co. v. Seale, 229 U.S. 156; Erie Railroad Co. v. Winfield, 244 U.S. 170. (2) There was no error in the giving of plaintiff's Instruction 1 and the refusal of defendant's instruction respecting the back-up signal. (a) The evidence distinguishes the salute given by Rogers to the fireman on the passing train from the customary back-up signal. Under the evidence it was a jury question as to whether the back-up signal was given. (b) Defendant's offered instruction would have peremptorily directed a verdict for the defendant simply if the engineer believed plaintiff's salute to the fireman was a back-up signal, without regard to whether or not such motion would have been interpreted as a back-up signal by an ordinarily prudent engineer, and without regard to whether or not it was in fact the same or a similar motion to that constituting a back-up signal. Furthermore, the instruction was improper in that it would have prohibited the jury from considering the negligence of the engineer in backing up at an excessive speed and in failing to observe the humanitarian doctrine. Shumate v. Wells, 9 S.W.2d 632; Harrington v. Dunham, 273 Mo. 430. (c) Error cannot be predicated upon the refusal of an instruction unless such instruction is proper in all respects. Murray v. Wells, 17 S.W.2d 613; Schuler v. St. Louis Can Co., 18 S.W.2d 42; Hogan v. K. C. Pub. Serv. Co., 19 S.W.2d 707; Linton v. St. L. Lightning Rod Co., 285 S.W. 183; Kilcoyne v. Metz, 258 S.W. 4; Hildman v. American Mfg. Co., 249 S.W. 99; Eisenberg v. Nelson, 247 S.W. 244; Sneed v. Shapleigh Hdw. Co., 242 S.W. 696; Higgins v. Pulley Co., 240 S.W. 252. (3) Plaintiff's Instructions 2 and 3 were proper. It was shown that the engineer was looking northwardly as the cars were being backed; that he had a clear view of plaintiff; that plaintiff had not given a back-up signal; that an embankment necessitated plaintiff's walking upon the ties in the path of the cars; that he was walking upon the ties continuously with his back to the cars; that a train was passing which was likely to prevent plaintiff from hearing the gravel cars. Hence, it was for the jury to say whether the engineer knew of plaintiff's obliviousness to danger. Smith v. Railroad Co., 129 Mo.App. 419; Hardwick v. Railroad Co., 181 Mo.App. 156; Degonia v. Railroad Co., 224 Mo. 564; Hinzeman v. Railroad Co., 182 Mo. 611; Foster v. West, 184 S.W. 165; Lynch v. Railroad Co., 208 Mo. 34; Cercida v. Mfgr. Co., 221 S.W. 434.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action, under the Federal Employers' Liability Act (U.S.C. A., Title 45, 51-59), for damages for personal injuries. This suit was brought by John F. Rogers, who was run over by appellant's cars, while he was in its employ as a brakeman. Rogers had a verdict for $ 22,500, and appellant has appealed from the judgment against it entered thereon. John F. Rogers died and, prior to hearing in this court, the cause was revived in the name of his administrator.

The serious question in this case is whether Rogers was, at the time of his injury, engaged in interstate transportation or in work so closely related to such transportation as to be practically a part of it, which is the test of the applicability of the Federal Act. [Chicago & N.W. Railroad Co. v. Bolle, 284 U.S. 74, 52 S.Ct. 59, 76 L.Ed. 173; Chicago & E. I. Railroad Co. v. Industrial Comm., 284 U.S. 296, 52 S.Ct. 151, 76 L.Ed. 304; New York, N. H. & H. Railroad Co. v. Bezue, 284 U.S. 415, 52 S.Ct. 205, 76 L.Ed. 370, 77 A. L. R. 1370.] This question is raised by appellant's assignment of error that the court erred in overruling its demurrer to the evidence at the close of the case. The facts in this case from which this question must be determined are undisputed.

Rogers had been employed by appellant as a brakeman on freight trains for twenty-three years, prior to his injury on April 21, 1930. On that day he was head brakeman on freight train No. 31 which left Jackson, Tennessee, for Okolona, Mississippi. In this train were several cars of interstate freight. There were also eight gondola cars which had been loaded with gravel at Johnsonville, Tennessee, delivered to appellant at Jackson, and placed in its train there. These gravel cars were billed to Selmer, Tennessee, but, either because there was not room for them there or because of a request from the consignee, the train crew got orders to set them out at Bethel Springs, Tennessee, a nearby station. The movement of these cars was entirely intrastate as they were at no time to be moved out of the State of Tennessee.

When the train reached Bethel Springs, it had orders to go on the passing track to allow freight train No. 28 to pass it and also to set out these gravel cars, and upon arriving there, the train pulled upon the passing track, which was west of the main line track. West of the passing track was a house track upon which the travel cars were to be left. There was a planing mill with a loading platform in front on the west side of the house track and there was a box car on the house track by this loading platform, having been placed there to be loaded with lumber. The train was headed south so that it was necessary to switch the house track from the south end. There was not enough room on the house track, south of the box car, to leave the gravel cars there, so the first movement was to take out the box car and couple it to the south gravel car. To make this movement Rogers, who as head brakeman was in charge of the switching, went over to the house track and removed the derail south of the box car. He then came back and uncoupled the engine and rode it south, to the house track switch stand. He threw the switch, gave a back-up signal and, when the engineer moved back on the house track, he got on the engine, rode back to the box car and coupled it to the tender. The box car was then pulled out onto the passing track, Rogers again threw the switch, gave the back-up signal, and the engine backed north with the box car to the standing train, where Rogers coupled the box car to the south gravel car. The conductor of the train uncoupled the north gravel car, gave the go-ahead signal which Rogers relayed to the engineer, and the engine moved again south past the switch stand with all nine cars. Rogers threw the switch again for the next movement, which was to back onto the house track until the box car was opposite the loading platform, at the place where it had been, but with the gravel cars north of it. It was then intended to uncouple the engine so that it could go back to the rest of the train and proceed on its interstate journey.

The engine was not to be moved back...