Sheehan v. Terminal R. Ass'n of St. Louis

• Decision Date: 09 March 1935
• Citation: 81 S.W.2d 305,336 Mo. 709
• Parties: Ethel Sheehan, Administratrix of the Estate of William Sheehan, Appellant, v. Terminal Railroad Association of St. Louis, a Corporation
• Court: Missouri Supreme Court

81 S.W.2d 305

336 Mo. 709

Ethel Sheehan, Administratrix of the Estate of William Sheehan, Appellant, v. Terminal Railroad Association of St. Louis, a Corporation

Supreme Court of Missouri

March 9, 1935

Rehearing Denied March 9, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.

Reversed and remanded.

Eagleton Henwood & Waechter and Frank P. Aschemeyer for appellant.

(1) The court clearly erred in giving defendant's instructions 4 and 5. Instruction 4 improperly required the jury to find for defendant if the truth as to the charge of negligence remained in doubt in their minds. Instruction 5 required a finding for defendant if there remained doubt in the jury's minds as to whether or not a warning was given by the Frisco train. In a civil case the plaintiff is required to prove the facts by the preponderance of the evidence, and not beyond doubt. Our courts have many times held instructions imposing a heavier burden than the rule calls for to be reversible error. State ex rel. Detroit F. & M. I. Co. v. Ellison, 268 Mo. 250; Marshall v. Ins. Co., 43 Mo. 586; Rothschild v. Am. Cent. I. Co., 62 Mo. 361; Gay v. Gillilan, 92 Mo. 257; Edwards v. Knapp & Co., 97 Mo. 432; Long v. Martin, 152 Mo. 683; Dakan v. Chase & Son Merc. Co., 197 Mo. 265; Brooks v. Roberts, 281 Mo. 551; Nomath Hotel Co. v. Kansas City Gas Co., 300 Mo. 261; Mitchell v. Dyer, 57 S.W.2d 1082; Payne v. Reed, 59 S.W.2d 1082; Grant v. Rowe, 83 Mo.App. 564; Finn v. United Rys. Co., 267 S.W. 416; Vanausdol v. Bank of Odessa, 222 Mo.App. 91. (2) This case is governed by the Federal Employers' Liability Act. Under that act, the kind and amount of evidence required is governed by the rules established by the Federal courts. C. & O. Ry. Co. v. Stapleton, 279 U.S. 587, 73 L.Ed. 861; C. M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1041. (3) It is as firmly established in the Federal courts as in the courts of this State that the plaintiff is required to establish his case only by a preponderance of the evidence, and that an instruction requiring proof beyond doubt is plainly erroneous. Lilienthal v. United States, 97 U.S. 267, 24 L.Ed. 901; Aetna Life Ins. Co. v. Ward, 140 U.S. 90, 35 L.Ed. 371; Fidelity Mut. Life Ins. Co. v. Mettler, 185 U.S. 317, 46 L.Ed. 922; Aetna Life Ins. Co. v. Caffee, 286 F. 661; Bolen-Darnell Coal Co. v. Williams, 164 F. 665; Hampton v. Railroad Co., 65 F.2d 901.

T. M. Pierce, J. L. Howell and Walter N. Davis for respondent.

(1) Plaintiff's cause of action, as shown by her petition, is/was grounded on interstate transportation and the Federal Employers' Liability Act. Inasmuch as plaintiff's decedent was not engaged, at the time of his injuries, in interstate transportation, her cause of action fails and the cause must be reversed. Cox v. Railroad Co., 61 S.W.2d 965; Phillips v. Ry. Co., 328 Mo. 240, 40 S.W.2d 1046; Jarvis v. Railroad Co., 327 Mo. 428, 37 S.W.2d 602. (a) At the time of his injuries, plaintiff's decedent, William Sheehan, was engaged in oiling an elevator in the city of St. Louis Union Station. Said elevator operated from the station platform to the subway below. The oiling of said elevator, a portion of said depot, even though it was used indiscriminately in carrying interstate and intrastate freight to and from the platform and subway, was not interstate transportation or work so closely related to it as to be a part of it. Boles v. Hines, 226 S.W. 272; 1 Roberts, Federal Liabilities of Carriers (1 Ed.), sec. 483; Pennsylvania Railroad Co. v. Manning, 62 F.2d 294; Industrial Acc. Comm. v. Davis, 259 U.S. 182, 66 L.Ed. 888, 42 S.Ct. 489; C. M. & St. P. Ry. Co. v. Chinn, 137 N.E. 885, certiorari denied, 263 U.S. 716, 68 L.Ed. 521, 44 S.Ct. 137; Minn. & St. L. Railroad Co. v. Nash, 242 U.S. 619, 61 L.Ed. 539, 37 S.Ct. 239, reversing Nash v. Minn. & St. L. Railroad Co., 131 Minn. 166, 154 N.W. 957; Tepper v. Railroad Co., 238 N.Y. 423, 144 N.E. 668; Capps v. Railroad Co., 178 N.C. 558, 101 S.E. 216, certiorari denied, 252 U.S. 580, 64 L.Ed. 726, 40 S.Ct. 345; C. & E. I. Railroad Co. v. Industrial Comm., 284 U.S. 296, 76 L.Ed. 304, 52 S.Ct. 151, 77 A. L. R. 1367; C. & N. W. Railroad Co. v. Bolle, 284 U.S. 74, 76 L.Ed. 173, 52 S.Ct. 59; Sullivan v. Railroad Co., 105 Conn. 122, 134 A. 795; D. L. & W. Railroad Co. v. Yurkonis, 238 U.S. 439, 59 L.Ed. 1397, 35 S.Ct. 902; Shanks v. Railroad Co., 239 U.S. 556, 60 L.Ed. 436, 36 S.Ct. 188; C. B. & Q. Railroad Co. v. Harrington, 241 U.S. 177, 60 L.Ed. 941, 36 S.Ct. 517; Illinois Cent. Railroad Co. v. Cousins, 241 U.S. 641, 60 L.Ed. 1216, 36 S.Ct. 446, reversing 126 Minn. 172, 148 N.W. 58; Vollmers v. Railroad Co., 223 N.Y. 571, 119 N.E. 1084, reversing 167 N.Y.S. 426, 180 N.Y. 60; G. H. & S. A. Ry. Co. v. Chojnacky, 163 S.W. 1011; G. N. Railroad Co. v. King, 165 Wis. 159, 161 N.W. 371; 2 Roberts Fed. Liabilities of Carriers, (2 Ed.), sec. 787. (2) A stipulation, where the facts show the contrary to be true, that the rights of the parties are controlled by the Federal Employers' Liability Act will not confer jurisdiction. C. & A. v. Allen, 249 F. 280, certiorari denied, 246 U.S. 666, 62 L.Ed. 929, 38 S.Ct. 335.

OPINION

Westhues, C.

Appellant, as administratrix of her husband's estate, filed suit against respondent, under the Federal Employers' Liability Act, to recover damages in the sum of $ 75,000 for the death of her husband. Upon trial the jury returned a verdict for respondent and from the judgment entered appellant appealed.

The deceased, William Sheehan, was employed by respondent, Terminal Railroad Association at the Union Station and yards at St. Louis, Missouri. On October 5, 1928, while oiling an elevator, he was struck and seriously injured by a train which was backing into the Union Station. As a result of these injuries he died on September 23, 1929.

Appellant's only assignment of error was that the trial court erred in the giving of two instructions requested by respondent. Respondent maintains that deceased, at the time he was injured, was not engaged in work connected with interstate transportation and, therefore, appellant was not entitled to maintain the present suit. We will first dispose of this question and if it is decisive of the case the other questions need not be discussed.

The record discloses that passenger trains arriving in St. Louis, on the various railroad tracks, are backed into a train shed at the Union Station for the purpose of discharging passengers and unloading baggage, mail and express. The tracks extend in a north and south direction with the station to the north. A platform about twelve feet wide between each set of two tracks serves as a passageway for passengers going to and coming from the trains. Near the south end of the platform, which serves tracks numbers six and seven, is located the elevator deceased was oiling at the time of the accident. The elevator is five feet in width and sixteen feet in length. It is utilized in lowering incoming express, baggage, etc., to a subway below and in elevating to the platform outgoing shipments. On the east side of the elevator there is a space of only about fourteen inches between the sides of cars passing or standing on track number seven and the elevator. At the time of the accident Southern Railway train number two was standing on track seven some distance north of the elevator near the station. The elevator was being used, at the time of the accident in transporting express brought in on train number two. While deceased was oiling the elevator an employee of an express company was waiting with a truck loaded with express to be lowered by means of the elevator. At this time a local intrastate Frisco passenger train backed into the train shed over track number seven. Deceased was caught between the elevator and the cars of this train and received serious injuries. The labor of unloading the express and trucking it to the express depot was being performed by employees of the express company and not by employees of the respondent.

The charges of negligence in the petition were, excessive speed and failure to give customary warning signals. The evidence was conflicting as to the charges of negligence. Substantial evidence was offered pro and con on the issues sufficient to support a verdict either for respondent or for appellant. It was admitted that respondent railroad company was the owner of the Union Station and that it maintained the particular elevator mentioned in evidence; also that respondent was engaged in interstate commerce. For the purpose of this opinion we are not holding that respondent admitted the deceased was engaged in work connected with interstate transportation so as to come within the Federal Employers' Liability Act.

The vital question affecting appellant's suit is whether or not deceased was engaged in work connected with interstate transportation. The elevator was used in carrying both interstate and intrastate shipments. Respondent contends that it should be classed as a part of the station and, therefore, is too remote to be considered as an instrument connected with the movement of interstate shipments, citing a long list of cases. Among them are: Cox v. Mo. Pac. Railroad Co., 61 S.W.2d 962, 332 Mo. 991; Phillips v. Ry. Co., 328 Mo. 240, 40 S.W.2d 1046; Jarvis v. Railroad, 327 Mo. 428, 37 S.W.2d 602; Industrial Acc. Comm. v. Davis, 259 U.S. 182, 66 L.Ed. 888; Minn. & St. L. Railroad Co. v. Nash, 242 U.S. 619, 61 L.Ed. 531; Shanks v. Delaware, L. & W. Railroad Co., 239 U.S. 556, 60 L.Ed. 436; Chicago & N. W. Ry. Co. v. Bolle, 284 U.S. 74, 52 S.Ct. 59, 76 L.Ed. 173; Chicago & Eastern Ill. Railroad Co. v. Industrial Comm., 284 U.S. 296, 52 S.Ct. 151, 76 L.Ed. 304.

From an examination of these cases it will be noted that the ...