Siegel v. Missouri-Kansas-Texas R. Co.

• Decision Date: 17 August 1938
• Docket Number: 34934
• Citation: 119 S.W.2d 376,342 Mo. 1130
• Parties: Elmer E. Siegel v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

119 S.W.2d 376

342 Mo. 1130

Elmer E. Siegel v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant

No. 34934

Supreme Court of Missouri

August 17, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Reversed and remanded (with directions).

Carl S. Hoffman and Everett Paul Griffin for appellant.

(1) The court erred in overruling the demurrer to the evidence and in submitting the case to the jury. (a) The suit was brought under the Federal Employers' Liability Act, but the evidence wholly failed to show that plaintiff, at the time he received his injuries, was engaged in interstate transportation. On the contrary, the evidence conclusively shows that at the time plaintiff was engaged in purely intrastate commerce. McNatt v. Wabash Ry. Co., 335 Mo. 999, 74 S.W.2d 625; Aldridge v. Wabash Ry. Co., 335 Mo. 595, 73 S.W.2d 401; Howard v. M. & O. Ry Co., 335 Mo. 304, 73 S.W.2d 272; Cox v. Mo. Pac. Ry Co., 61 S.W.2d 965; Phillips v. Union Term. Ry. Co., 328 Mo. 240, 40 S.W.2d 1046; Jarvis v. C., B. & Q. Ry. Co., 327 Mo. 428, 37 S.W.2d 602; Martin v. St. L.-S. F. Ry. Co., 302 Mo. 506, 258 S.W. 1023; Myers v. C., B. & Q. Ry. Co., 296 Mo. 239, 246 S.W. 257; Ill. Cent. Railroad Co. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051; C., B. & Q. Railroad Co. v. Harrington, 241 U.S. 177; Ill. Cent. Railroad Co. v. Peery, 242 U.S. 292, 37 S.Ct. 122, 61 L.Ed. 309; Erie Railroad Co. v. Welsh, 242 U.S. 303; Minneapolis & St. L. Railroad Co. v. Winters, 242 U.S. 353, 37 S.Ct. 170, 61 L.Ed. 358; Chicago & Northwestern Ry. Co. v. Bolle, 284 U.S. 74; Chicago & Eastern Ill. Railroad Co. v. Industrial Comm., 284 U.S. 296, 298, 52 S.Ct. 151, 76 L.Ed. 304; Wise v. Lehigh V. Ry. Co., 43 F.2d 692; Pope v. Utah-Idaho Cent. Ry. Co., 54 F.2d 575; Middleton v. So. Pac. Co., 61 F.2d 929; Birmingham Belt Ry. Co. v. Dunlap, 58 F.2d 951; Drew v. Mo. Pac. Ry. Co., 100 S.W.2d 516. (b) Since plaintiff was not engaged in interstate transportation at the time he received his injuries his rights, if any, were governed by the Missouri Workmen's Compensation Act, and he could not recover in this action even if the cause of his injuries was a violation of the Federal Safety Appliance Acts. Tipton v. A., T. & S. F. Ry. Co., 56 S.Ct. 715; Gilvary v. Cuyahoga Valley Ry. Co., 292 U.S. 57; Moore v. C. & O. Ry. Co., 291 U.S. 205; Gieseking v. Litchfield & M. Ry. Co., 94 S.W.2d 375; Geraghty v. Lehigh Valley Ry. Co., 83 F.2d 738; Secs. 3299-3376, R. S. 1929. (2) The court erred in granting plaintiff a new trial. (a) It is presumed by appellate court that trial court overruled all grounds in motion for new trial except those specified in the order granting the new trial, and the burden is on the respondent to show the contrary. Porter v. C., B. & Q. Ry. Co., 28 S.W.2d 1039; Manthey v. Kellerman Const. Co., 277 S.W. 929. (b) The court erred in granting a new trial upon the ground that the court had erred in giving defendant's Instructions 5 and 15. Said instructions properly submitted the law that plaintiff could not recover if, at the time, he was not engaged in interstate commerce. If the jury found the facts to be those stated in these two instructions then he was not engaged in interstate commerce and could not recover. It would have been error not to have given these instructions. Downey v. Kansas City Gas Co., 92 S.W.2d 580; Lehigh Valley Railroad Co. v. Barlow, 244 U.S. 183; Shauberger v. Erie Ry. Co., 25 F.2d 297; Philadelphia & R. Ry. Co. v. Cannon, 296 F. 302.

N. Murry Edwards and Robert A. Harris for respondent.

(1) The trial court erred in admitting into evidence, over the objection of plaintiff, defendant's Exhibit 7, being a certificate from the Missouri Workmen's Compensation Commission showing there was no rejection by plaintiff or defendant of the Missouri Workmen's Compensation Law on file. Jarvis v. C., B. & Q. Ry. Co., 37 S.W.2d 602. (2) The trial court erred in giving defendant's Instruction 15, which told the jury that if at the time plaintiff received his injuries he was engaged in switching cars in the yards at Clinton, and that none of the cars were at the time assigned to a destination beyond Clinton, Missouri, then they should find for the defendant, even though the freight train upon which plaintiff was employed had certain cars destined to points beyond the State of Missouri. This ground was properly assigned as a reason for a new trial in the trial court's order sustaining plaintiff's motion for a new trial. Pennsylvania Railroad Co. v. Morrison, 3 F.2d 986; 2 Roberts' Federal Liability of Carriers (2 Ed.), secs. 742, 749, pp. 1418, 1439; Trowbridge v. K. C. Westport Ry. Co., 192 Mo.App. 62; Lalone v. St. L. Merchants Bridge Term. Ry. Co., 293 S.W. 381. (3) Plaintiff made a case under the interstate commerce laws by showing that at the time he was injured the loaded car of flour billed to Fort Worth, Texas, was coupled onto the rear of the engine, and that an empty New York Central box car was also coupled onto the rear of the engine; that the next move after he was injured was to place these two cars into the train on the house track. Plaintiff's train was an interstate train hauling interstate commerce, and this accident happened while attempting to couple onto the Frisco box car and remove it from the main line over which defendant transports interstate commerce. Pennsylvania Railroad Co. v. Morrison, 3 F.2d 986; Southern Ry. Co. v. Jacobs, 81 S.E. 99; Reap v. Hines, 273 F. 88; Davis v. Dowling, 284 F. 670; Payne v. Bearden, 266 F. 879; Youngstown & O. Railroad Co. v. Halverstodt, 12 F.2d 995; Sullivan v. Wabash Ry. Co., 23 F.2d 323; Daley v. Boston & M. Railroad, 166 N.Y.S. 840; Pennsylvania Co. v. Donat, 239 U.S. 50; Baltimore & O. Railroad Co. v. Darling, 3 F.2d 987; Stewart v. Wabash Ry. Co., 182 N.W. 496, certiorari denied, 257 U.S. 641, 66 L.Ed. 412, 42 S.Ct. 52; Koennecke v. Seaboard Air Line Ry., 101 S.C. 86, 85 S.E. 374, affirmed 239 U.S. 352, 60 L.Ed. 324, 36 S.Ct. 126. (a) The fact that the immediate movement was to couple the Frisco box car and remove it from the main line over which defendant transported interstate commerce was sufficient to make a question for the jury as to whether or not it was interstate commerce. Stewart v. Wab. Ry. Co., 182 N.W. 496, certiorari denied, 257 U.S. 641, 66 L.Ed. 412, 42 S.Ct. 52; Koennecke v. Seaboard Air Line Ry., 101 S.C. 86, 85 S.E. 374; affirmed, 239 U.S. 352, 60 L.Ed. 324, 36 S.Ct. 126.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Elmer E. Siegel seeks a judgment of $ 95,000 for personal injuries against the Missouri-Kansas-Texas Railroad Company, a corporation, under the Federal Employers' Liability Act (45 U.S.C. A., Chap. 2) for violation of the Federal Safety Appliance Act (45 U.S.C. A., Chap. 1) and common-law negligence. Defendant prosecutes this appeal from an order granting plaintiff a new trial on assigned grounds of error in defendant's instructions. The first question for determination is whether or not plaintiff was engaged in interstate commerce at the time of his injuries. We may assume defendant's negligence for our discussion of the issue.

On the disputed fact issues, plaintiff's was the only testimony undertaking to establish interstate transportation at the time he received his injuries; and due to the omission of certain factual elements therefrom and inconsistencies and contradictions therein a more detailed statement is called for than would otherwise be necessary.

Plaintiff head brakeman on defendant's local freight train, transporting inter and intrastate traffic, from Franklin to Lindale, Missouri, an intrastate journey, was injured on the morning of October 9, 1933, while engaged in a switching movement at Clinton, Missouri. The train crew performed all the necessary switching, including local switching, at stations not having a switch engine, Clinton being such a station. The depot at Clinton faces east, having a concrete and brick station platform. Defendant's main track, a north and south track, is adjacent to the station platform. East of the main track is a passing track which connects with the main track at points north and south of the depot. An industry track, known as the poultry or elevator track, extends south and east from a point north of the depot on the passing track and, in turn, services a poultry establishment, a farmer's elevator and some oil stations. The house track extends west and north from a point on the main track south of the depot and services the freight platform on the west side of the depot and industries north of the depot. Extending west from this house track are tracks known as the team track and repair or rip track. Extending west and south from a point on the main track south of the depot is the stock track, which services the stockyards, approximately a quarter mile south of the station. North of the depot, from a half to a mile, is located the Frisco exchange track, a track on which cars are interchanged by the defendant and Frisco railroad; and also an industry track extending east from the main track to what is known as the Larabee Mill. Defendant's train on the day in question, proceeded south from Lewis, the first station to the north, on a continuous run until it headed in on the passing track at Clinton. The switch list for defendant's said train at Clinton on the day in question was offered in evidence by plaintiff and disclosed, in so far as here involved, the following situation upon the train's arrival. On the house track, the following cars: an empty Frisco car, destined for the Frisco interchange track, a car of fertilizer, destined for the farmer's elevator, and three empty stock cars, destined for the chute at the stock yards. On the Larabee track,...