St. Louis-San Francisco Railway Company v. Conly

• Decision Date: 29 May 1922
• Docket Number: 24
• Citation: 241 S.W. 365,154 Ark. 29
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. CONLY
• Court: Arkansas Supreme Court

241 S.W. 365

154 Ark. 29

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. CONLY

No. 24

Supreme Court of Arkansas

May 29, 1922

Appeal from Craighead Circuit Court, Jonesboro District; R. H Dudley, special judge; reversed.

Judgment reversed and cause remanded.

W. F. Evans, E. L. Westbrooke and W. J. Orr, for appellant.

1. At the time of the accident the defendant was a carrier engaged in interstate commerce, and the plaintiff was employed in such commerce. The Federal Employers' Liability Act applies. 124 Ark. 127 and cases cited. It is exclusive and supersedes all State laws on the subject. 129 Ark. 534; 244 U.S. 147; Id. 170; Id. 360; 167 N.W. 349; 162 P. 111.

2. In view of the foregoing decisions the court's in-st ruction "A" was manifestly erroneous and prejudicial. See also 247 U.S. 367; 233 U.S. 492; 41 U.S. S.Ct. 236 Id. Rep. 36; 40 Id. 275; 239 U.S. 548; 226 Id. 135; 236; Id. 554; 136 Ark. 440.

3. For the same reasons the court erred in refusing to instruct on the question of assumption of risk as requested by the defendant.

Roy Penick and Basil Baker, for appellee.

It is true that where Congress has the power to pass any particular act, and has once covered the field, State laws must yield in so far as they may be in conflict, but it is by no means true that where a State law has been passed and where it may be regarded as in aid of the congressional act, it would be held void. 146 Ark. 448. Since it has been held that the Congress of the United States is without power to pass a child labor law, is it not equally true that it is without power to pass an act that would nullify such a law passed by the State? It cannot, under the guise of regulation of interstate commerce, invade the rights of the States, and has no authority to control the States in the exercise of their police power over local trade and manufacture. 247 U.S. 251 62 L.Ed. 1102; 276 F. 452; 219 U.S. 453, 55 L.Ed. 290. The Congress has not yet covered that part of the field pertaining to the employment or prohibiting the employment of minors under 16 years of age by interstate carriers, if it has the right to do so, and the States, in the exercise of their police power, have the right to act in regard to that phase of the situation.

OPINION

WOOD, J.

The appellant is a common carrier engaged in interstate commerce. This action was instituted by Hal Conly, a minor, by his next friend, Cheatham Conly, and also by Cheatham Conly in his own right, appellees, against the St. Louis-San Fancisco Railway Company, appellant. It is alleged in the complaint that Hal Conly was a minor fifteen years of age employed by the appellant; that he was engaged in unloading lumber, shipped in interstate commerce, from a car; that because of the manner in which the lumber was loaded the work was hazardous, which fact, by reason of Conly's youth and inexperience, was unknown to him; that appellant negligently failed to warn, or to instruct him of the dangerous character of the work and as to the manner of its performance; that, while Conly was performing his work and using due care for his own safety, the timbers fell from the car on Conly, seriously and permanently injuring him, to his damage in the sum of $ 10,000, for which he prayed judgment.

In a second count to the complaint Hal Conly and Cheatham Conly set up the same cause of action as alleged in the first count and prayed damages in the sum of $ 10,000. Appellant, in its answer, denied all the material allegations of the complaint and set up the affirmative defenses of contributory negligence and assumed risk.

1. It is established by the pleadings, and the undisputed testimony as well, that at the time of the alleged injury the appellant was a common carrier engaged in interstate commerce and young Conly was in its employ doing work relating to such commerce. At the conclusion of the testimony the court instructed the jury that Cheatham Conly was not entitled to recover. He has not appealed, and therefore passes out of the case.

Among other instructions the court, on its own motion, gave the following:

"A. You are instructed that if you find from a preponderance of the evidence that the defendant company, through Arthur Anthony, employed the plaintiff, Hal Conly, at a time when he was a minor, under the age of sixteen years, and put him to work to moving timber from one car to another car on its tracks, and that he was injured while so at work, and that the injuries complained of herein were the direct result of such unlawful employment of the plaintiff, then you will find for the plaintiff."

Among other prayers for instructions, the appellant prayed the following: "4. You are instructed that, if you find and believe from the evidence that the danger of the timbers falling when the stakes were removed from the bad order car was so obvious that a boy of Hal Conly's experience would have appreciated the danger, then Hal Conly is charged with the knowledge and appreciation thereof, and will not be heard to say that he did not know and appreciate such danger, and he cannot recover herein, even if you find that no special instructions or warnings were given to him."

The above prayer of appellant was in conformity with the law on the doctrine of assumed risk as announced by this court in the case of Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232. This prayer for instruction, therefore, should have been granted, provided the Federal Employers' Liability Act (April 22, 1908, 35 Revised Statutes at Large, 65, ch. 149, Compiled Stat. 1916, sec. 8657) is controlling. It should be said in this connection that the prayers of appellant for instructions Nos. 3, 5 and 6 were not applicable to the facts of this record, and were therefore abstract and misleading, and the court did not err in refusing to grant them, even though the Federal act controls.

Does the Federal act control? Since the appellant was a common carrier engaged in interstate commerce and at the time of the alleged injury the appellee was employed in such commerce, the Federal act applies. Long v. Biddle, 124 Ark. 127. And, since the Federal act does apply, as was said by this court in St. Louis, I. M. & S. Ry. Co. v. Steel, 129 Ark. 520 at 520-534, 197 S.W. 288, "that act therefore governs the case. Since its passage all State laws upon the subject have been superseded. 'It covers and overlaps the whole State legislation, and is therefore exclusive.'" In addition to the cases there cited see New York Cent. Rd. Co. v. Winfield, 244 U.S. 147, 61 L.Ed. 1045, 37 S.Ct. 546; Erie Rd. Co. v. Winfield, 244 U.S. 170, 61 L.Ed. 1057, 37 S.Ct. 556; New York Cent. & H. R. R. Co. v. Tonsellito, 244 U.S. 360, 61 L.Ed. 1194, 37 S.Ct. 620; McLain v. Chi. Great West. R. Co. (Minn.) 167 N.W. 349; Smithson v. Atchison, T. & S. F. Ry. Co., 174 Cal. 148, 162 P. 111.

In the cases above cited the Supreme Court of the United States holds that the Federal act "establishes a rule of regulation which is intended to operate uniformly in all the States as respects interstate commerce, and in that field it is both paramount and exclusive."

In Smithson v. Ry., supra, the action was brought by minor through his guardian ad litem to recover damages from the defendant for injuries sustained by the minor while in its employ. The action was brought under the provisions of the Federal Employers' Liability Act. There was a State law providing that "no minor under the age of eighteen years shall be employed or permitted to work between the hours...