Spaw v. Kansas City Terminal Ry. Co.

• Decision Date: 28 January 1918
• Docket Number: No. 12524.,12524.
• Parties: SPAW v. KANSAS CITY TERMINAL RY. CO. et al.
• Court: Missouri Court of Appeals

201 S.W. 927

198 Mo. App. 552

SPAW v. KANSAS CITY TERMINAL RY. CO. et al.

No. 12524.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by E. R. Spaw against the Kansas City Terminal Railway Company, a corporation, and another. Judgment for plaintiff, and from an order granting a new trial, he appeals. Affirmed.

Handy & Swearingen, of Kansas City, for appellant. Samuel W. Sawyer and Fred S. Hudson, both of Kansas City, for respondents.

TRIMBLE, J.

Plaintiff brought this action, under state law, against both defendants to recover damages for an injury inflicted upon his eye by a red hot cinder emitted from an engine of the defendant Milwaukee Railroad, as the result of the alleged negligent maintenance and use thereon of a defective smoke consumer and cinder arrester. The petition alleged that the Milwaukee Railroad was operating its trains over the tracks of the Terminal Railroad as a lessee for hire. At the close of plaintiff's case and also at the close of all the evidence, both defendants demurred separately, each asking a peremptory instruction to find in its favor. In urging the final demurrers, the defendants expressly raised the point that the evidence showed the case to be governed by the federal Employers' Liability Act. The demurrers were overruled, and the case was submitted to the jury, which returned a verdict for $7,500 against both defendants. Afterwards, the court sustained their separate motions for new trial, the reason assigned for such action being that "the court erred in not sustaining the demurrer of defendants to plaintiff's evidence." Whereupon plaintiff duly appealed.

The injury occurred, and the cause of action accrued, April 24, 1913, but the suit was not brought until August 28, 1915. Consequently, if the cause of action is controlled by the federal act, as to both defendants, the plaintiff has no case, since suit was not brought within two years. 36 U. S. Statutes at Large, p. 291, c. 143 (U. S. Comp. St. 1916, §§ 8662, 8665); Atlantic Coast Line Railroad v. Burnette, 239 U. S. 199, 36 Sup. Ct. 75, 60 L. Ed. 226. The vital question, therefore, is whether or not the facts of the case bring it under the federal act.

The defendant terminal company owned the old Union Depot in Kansas City, Mo., together with a line of railroad around said city with tracks leading to said Union Depot and connecting with practically all of the many trunk line railroads entering Kansas City. Nearly all passenger trains entering and leaving Kansas City used the said depot and the Terminal Railway tracks. In fact all the trains, freight as well as passenger, of nearly all the great trunk lines entering Kansas City used the tracks of, and the terminal facilities afforded by, the said Terminal Company. The defendant Milwaukee Railway Company was one of these trunk lines, and, under a contract with the Terminal Company, operated its trains over the latter's said tracks. Among them was a Milwaukee passenger train No. 8, which ran from Kansas City to Chicago via Ottumwa, Iowa; and Milwaukee engine No. 3106 was the regular engine which pulled this train out of Kansas City on its interstate journey. According to plaintiff's evidence it was the regular engine assigned to that train provided it met with no accident, and the record does not show that it was used in any other service. Preparatory to taking train No. 8 out on its journey, said engine No. 3106 regularly left the Milwaukee roundhouse near the eastern limits of Kansas City every morning about 7:40, stopped at the yard of the Milwaukee Company, known as the Broadway yard, where it coupled onto the passenger coacnes making up said train No. 8, and then proceeded immediately to the Union Depot, where the train received its passengers and then left on its journey. In thus going from the roundhouse to the Union Depot and thence out of the city, the Terminal Company's tracks were used.

Plaintiff was the general yardmaster of the Terminal Company, and his duties included the supervisory charge of the operation of all trains using the Terminal Company's tracks, the direction of affairs following wrecks and accidents thereon, including the clearing of the tracks, so that general traffic would not be hindered or obstructed. On the day of plaintiff's injury, while said Milwaukee train No. 8 was proceeding from the Broadway yard to the Union Depot, Its engine No. 3106 was derailed about 1½ miles from said depot. Plaintiff, as general yardmaster of the Terminal Company, was notified, and immediately took charge of the situation. The Milwaukee had sent another engine which had arrived on the scene when plaintiff reached the spot. Plaintiff ordered the train to be uncoupled from the derailed engine, and had it attached to the other engine so as to take the train out of the way and on to the depot for its passengers. By direction of the Milwaukee yardmaster, who was present at first, but who shortly after went away, the crew on the derailed engine traded places with the crew on the other engine, and train No. 8 went on to the depot where, after securing its passengers, it left on its interstate trip. In the meantime plaintiff was endeavoring to get the derailed engine back on the track and to clear the terminal tracks so that general business could be dispatched thereover. According to plaintiff's testimony the derailed engine was tying up the terminal's business, and there were trains standing headed both ways waiting to get by the wreck. After train No. S with its new engine had gone on to the depot, plaintiff had two engines endeavoring to pull the derailed engine onto the rails again, but, to do so, it was also necessary for the derailed engine to greatly exert its own power. When the signal was given for the concerted action of all three engines, the engineer on the derailed engine applied its power to the utmost, throwing the throttle wide open and causing a heavy exhaust of steam to be thrown out of the smokestack, during which plaintiff got a cinder in his eye.

As the Terminal Railway tracks and facilities were used and necessary in the transportation of persons and property by the "trunk line railroads" which enter Kansas City the said defendant Terminal Railroad was engaged in interstate commerce. United States v. Union Stockyard & Transit Co., 226 U. S. 286, 33 Sup. Ct. 83, 57 L. Ed. 226; Ohio Railroad Commission v. Worthington, 225 U. S. 101, 32 Sup. Ct. 653, 56 L. Ed. 1004; Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 31 Sup. Ct. 279, 55 L. Ed. 310; Trowbridge v. Kansas City, etc., R. Co., 192 Mo. App. 52, 179 S. W. 777; Interstate Commerce Act (Act Cong. Feb. 4, 1887, c. 104, 24 Stat. 379), as amended June 29, 1906, 34 Stats. at Large, p. 584, c. 3591.

All railroads in this state are required to engage in interstate commerce, and it would seem that, even if the record were silent as to the nature of the commerce carried on by the "trunk line railroads entering Kansas City," still we might be able to take judicial knowledge that such trunk lines were engaged in interstate commerce. State v. Missouri Pacific R. Co., 212 Mo. 658, 111 S. W. 500. However, the record shows affirmatively that both defendants were railroad corporations and that they were engaged in interstate commerce. The Milwaukee is clearly an interstate railroad, and not only were cars transferred between it and the other trunk lines over the Terminal Railway's tracks, but the Milwaukee interstate train No. 8 was operated over them daily, and its derailment, necessitating the work in which the injury was received, occurred on said terminal tracks. The two defendants were common carriers engaged in interstate commerce.

But the cause of action is not within the Employers' Liability Act unless the injury occurred "when the particular service in which the employé is engaged is a part of interstate commerce." Illinois Central It. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 5S L. Ed. 1051, Ann. Cas. 1914C, 163. Hence the question arises, Was plaintiff engaged in interstate commerce at the time he was injured? Clearly he was as to the defendant Terminal Company because he was then engaged in clearing the tracks of said company in order that transportation thereover might not be hindered or impeded. The tracks being indispensable to the interstate commerce in which the defendant Terminal Railroad was engaged, the clearing thereof was not a matter of indifference to such commerce, but was "so closely connected therewith as to be a part of it." Pedersen v. Delaware, etc., R. Co., 229 U. S. 146, 151, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. The authorities all hold that when the work being done is such that it directly affects or facilitates the carriage of interstate commerce, then the employe is engaged in such commerce. New York Central R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, Ann. Cas. 1917D, 1139; Southern R. Co. v. Puckett, 244 U. S. 571, 37 Sup. Ct. 703, 61 L Ed. 1321; Seaboard Air Line R. Co. v. Koennecke, 239 U. S. 352, 36 Sup. Ct. 126, 60 L. Ed. 324; Hardwick v. Wabash R. Co., 181 Mo. App. 156, 168 S. W. 328; Christy v. Wabash R. Co., 195 Mo. App. 232, 191 S. W. 241.

Again, train No. 8 was an interstate train, and it had started on its regular interstate trip, since the bringing of the train to the depot was the necessary preparatory step to the principal interstate movement. North Carolina Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159; New York Central, etc., R. Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298. However, it will doubtless be said that the injury did not occur until after plaintiff had disconnected the train from its derailed engine and had...