Sibert v. Litchfield & M. Ry. Co.
| Decision Date | 16 December 1941 |
| Docket Number | 37631 |
| Citation | 159 S.W.2d 612 |
| Parties | SIBERT v. LITCHFIELD & M. RY. CO |
| Court | Missouri Supreme Court |
Rehearing Denied March 13, 1942.
Franklin E. Reagan, of St. Louis, and M. L. Burroughs, of Edwardsville, Ill. (Warnock, Williamson & Burroughs, of Edwardsville, Ill., of counsel), for appellant.
Mark D Eagleton and Roberts P. Elam, both of St. Louis, for respondent.
BARRETT, Commissioner.
Action under the Federal Employers' Liability Act, 45 U.S.C.A §§ 51-59, by Bessie Sibert, administratrix, for the death of her husband, Sampson Sibert, a brakeman, against his employer, the Litchfield & Madison Railway Company. The railroad appeals from an adverse verdict and judgment of $ 30,000.
The plaintiff's petition, which the railroad claims does not state a cause of action, alleged, in substance, that the defendant owned and operated 'a railroad system, properties, lines, tracks, engines and cars, a common carrier by railroad, transporting goods and freight to and from the State of Illinois and to and from various other of the several states of the United States, and engaged as such common carrier by railroad in interstate commerce and transportation'; that on April 6, 1939, Sampson Sibert, a brakeman, while employed by the railroad in interstate commerce, was riding on an engine when the tracks, under the railroad's control, broke or gave way causing him to fall from the engine, the resulting injuries causing his death.
The railroad's assignment is that the allegation with respect to interstate commerce is a mere conclusion; that no facts are stated showing that the railroad was engaged in interstate commerce, and that, therefore, the petition wholly fails to state a cause of action under the statute. But, Midway Nat. B. & T. Co. v. Davis, 288 Mo. 563, loc.cit. 575, 233 S.W.406, loc.cit. 409 and cases there cited; 2 Roberts, Federal Liabilities of Carriers, § 995, p. 1912.
The railroad's assignments of error that its demurrers to the evidence should have been sustained because Sampson Sibert was not engaged in interstate transportation at the time of his injury and death requires a detailed statement of the evidence as to the movements of the railroad crew and of various cars on that day. The parties do not agree on what the witnesses testified to and put conflicting interpretations of fact on the same evidence. A careful examination of the record permits the following as a statement, in substance, of the testimony given by the witnesses:
The Litchfield & Madison Railway is about fifty miles long and wholly within the State of Illinois. Sampson Sibert was a brakeman or switchman in a five man crew that went to work about 8 o'clock on the morning of April 6, 1939 in the yards, which extend for about five miles from East St. Louis to Madison. The crew was attached to engine No. 155 and their duties were to switch cars, pick up deliveries and deliver cars. At the close of the work day the switch foreman made up a work sheet which set forth everything that crew and engine No. 155 had done. Starting early in the morning, they received two cars from the Wiggins yard which they brought to the lower yards. They weighed one of these cars. Then they delivered one car to the Eads yard and received one there. These acts required movements back and forth over that part of the yards. When they had completed these tasks they coupled all the cars they had together and moved out to the Bridge Junction, then on up to St. Clair Avenue, where they stopped on the main line and cut off all the cars, except a car of sand next to the engine. The car next to the engine was L. & M. car No. 1826 and had been loaded with sand at Edwardsville, Illinois, consigned to the American Agricultural Chemical Co. in the stockyards in East St. Louis, Illinois. Up to this time they had six cars. On the back track which paralleled the main line, and west of St. Clair Avenue, there were eight other cars which they picked up or moved after the carload of sand had been delivered in the stockyards, doubled back over the back track on to the main line and proceeded on to Madison. These movements consumed considerable time and involved moving back and forth for considerable distances over at least three tracks. While the car of sand was being pushed into the stockyards on that switch track Sibert was injured.
When the crew went to work in the morning they had a conductor's switch list and waybills describing nine cars, their contents, place of origin and destination. One of them was the car of sand. The other eight were to be taken to Madison for delivery to and connection with the Chicago & Northwestern Railroad at Benld. The eight cars were interstate shipments. The switch foreman also had a switch list which constituted his instructions. This list contained the nine cars mentioned above and several other cars which were to be switched. The switching had been completed when the crew and engine No. 155 proceeded to the St. Clair crossing with the five interstate cars and the car of sand. Three of the interstate cars, described on the conductor's switch list, and to be delivered at Madison, were on the back track at St. Clair crossing and were picked up after the sand was delivered and after the accident. The crew was to deliver the cars in time to make a definite connection at Madison that morning. The fireman, who was a son of the deceased, and the switch foreman testified that they would not have delivered the car of sand on that trip unless they had had sufficient time to make the connection. They would have taken the sand along and delivered it in the stockyards on their trip back. The switch foreman stated that when the six cars were coupled together in the East St. Louis yards that they were then en route to Madison; that they had to stop at the St. Clair crossing, pick up the other three cars and proceed on for the C. & N. connection; that their purpose was to take all the cars, except the sand, to Madison.
The railroad contends that, since Sibert was injured on the stockyards switch track while the engine and crew were delivering the car of sand, he was not then engaged in interstate commerce and, therefore, not entitled to recover under the act. It claims that he must have been actually engaged in interstate commerce at the particular time of his injury; that it is immaterial that he was so engaged immediately before or immediately after the accident. Or, stated in another manner, the railroad says that at the time of his injury he was engaged in an independent switching movement, the dominant purpose of which was to facilitate intrastate, and not interstate commerce; that the movement of the car of sand was one of a succession of separate, independent tasks required of the crew.
The respondent's theory is that the dominant task of the crew was the handling and movement of the eight interstate cars; that the movement of the car of sand was subordinate and incidental to the main purpose; and that whether or not Sibert was engaged in interstate transportation at the time was for the jury's determination, under the evidence, if not as a matter of law.
Nebulous as the line of demarcation between interstate and intrastate transportation is, we are of the opinion that this case falls within the act. At least there was sufficient competent evidence from which the jury could reasonably find that at the time of Sibert's fatal injury he was engaged in interstate transportation or in an act so directly and immediately connected with it as substantially to form a part or necessary incident of it. New York Central & H.R.R Co. v. Carr, 238 U.S. 260, 35 S.Ct. 780, 59 L.Ed. 1298. The respondent contends that the cars involved constituted an interstate train and that the crew was not a switching crew but a train crew. One of the railroad's witnesses, on cross-examination, did answer 'Yes' when counsel said, 'When you started with those cars as a train moving from East St. Louis, your purpose at that time was to take the whole group of cars, with the exception of that one, to Madison'? While these things might have some weight in determining whether or not they were engaged in interstate transportation, they are not decisive or conclusive. Whether there was a train or not, and regardless of the characterization of the crew, the question is whether or not the employment they were then engaged in brought them within the act. The appellant says that the delivery of the car of sand was a separate, independent task, not connected in any way with the tasks performed before or to be performed later by the crew and that it was clearly an intrastate movement. If this were true it would readily be conceded that there could be no recovery in this instance. The same result would follow if all the cars here involved had been intrastate cars, or if the crew had then been merely engaged in general switching movements, alternately of interstate and intrastate cars. Illinois Cent. R. R. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 647, 58 L.Ed. 1051, Ann.Cas.1941C, 163; Illinois Cent. R. R. v. Peery, 242 U.S. 292, 37 S.Ct. 122, 61 L.Ed. 309; Pope v. Utah-Idaho Cent. R. Co., 10 Cir., 54 F.2d 575; Wise v. Lehigh Valley R. Co., 2 Cir., 43 F.2d 692; Phillips v. Union Terminal Ry. Co., 328 Mo. 240, 40 S.W.2d 1046. Or if the crew had been attached to an admittedly interstate train and it was contemplated that when it reached a certain station it was to stop and the crew were then and there to engage in...
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