Stott v. Thompson

Decision Date15 April 1938
Docket NumberAg. No. 16.
Citation294 Ill.App. 450,14 N.E.2d 246
PartiesSTOTT v. THOMPSON.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Appeal from City Court of East St. Louis; Wm. F. Borders, Judge.

Suit at law by Linnie R. Stott, administratrix of the estate of Robert M. Stott, deceased, against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, to recover damages for the dependent next of kin of the deceased, on theory that death of deceased was due to defendant's violation of federal statutes. Judgment for plaintiff, and defendant appeals.

Affirmed. Whitnel & Browning, of East St. Louis, for appellant.

McGlynn & McGlynn, of East St. Louis, and Eagleton, Waechter, Yost, Elam & Clark, of St. Louis, Mo., for appellee.

STONE, Presiding Justice.

Linnie R. Stott, appellee, as administratrix of the estate of Robert M. Stott, deceased, filed her suit at law against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, to recover damages for the dependent next of kin of the deceased, on the theory that the death of Robert M. Stott was due to a violation by the defendant of the Federal Safety Appliance Act, 45 U.S.C.A. § 1 et seq., and the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Appellant contended the Federal Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 901-950, controlled liability. She recovered a verdict and judgment for $35,000. Appellant seeks a reversal in this court.

The complaint charges the defendant was a trustee, appointed by the United States District Court, Eastern District of Missouri, of the Missouri Pacific Railroad Company, and was operating said railroad as a common carrier in interstate commerce. That on June 14, 1936, Robert M. Stott was employed by the defendant as a switchman. That he was working with cars which were “then and there being moved and transported” from the State of Missouri to the State of Illinois, by reason whereof he and the defendant were subject to the Federal Employers' Liability Act and the Federal Safety Appliance Act. That the defendant disregarded his duty to equip a certain coal car with secure ladders, as required by law, and that while plaintiff's intestate was climbing such insecure ladder, and while in the usual course of his employment, the handhold broke and he fell into the Mississippi River and drowned. That at the time of his fall into the river Stott was “upon that portion of said car which was on a structure known as the ‘apron’ or upon a ‘cradle’ adjoining said apron, said apron and cradle being a permanent part of the land structure used by defendant from said car into the Mississippi River, which flowed under said apron and cradle.”

The answer admitted the employment of the plaintiff's intestate and averred “it was also the work and employment of said Robert M. Stott to work in, on and about this defendant's cars while the same were on a certain ferry-boat known as the ‘Steamer Willard V. King,’ and to work in connection with the removal of said railroad cars from on said boat, and in connection with the movement of cars from land onto said boat,” which boat was operated between the States of Illinois and Missouri across the Mississippi River, which was averred to be a part of the “navigable waters of the United States”; that at times Robert M. Stott performed duties for the defendant where their relations were governed by the Federal Employers' Liability Act and the Federal Safety Appliance Act, “but denies that at the time and place mentioned in plaintiff's complaint that either the defendant or said Robert M. Stott were subject to the provisions of said Federal Employers' Liability Act and said Federal Safety Appliance Act, and states that at all times and places mentioned in plaintiff's complaint, and at the time of the accidental death of said Robert M. Stott, which in paragraph 8 of said complaint is pleaded, both the defendant and said Robert M. Stott were subject to the provisions of what is commonly known as the Longshoremen's and Harbor Workers' Compensation Act 33 U.S.C.A. §§ 901-950, for the reason that said accidental death occurred upon the navigable waters of the United States,” and “liability between the parties is governed” by the Longshoremen's and Harbor Workers' Compensation Act, and not by the Federal Employers' Liability Act, 45 U.S.C.A. 51-59, and the Federal Safety Appliance Act, 45 U.S.C.A. 1-16. Averments of the complaint, with reference to the insecure handhold, were denied; and also it was denied that the “accident out of which the death of said Robert M. Stott arose occurred upon the land or upon any structure which was then a permanent part of the land within the meaning of the Longshoremen's and Harbor Workers' Compensation Act of the United States, but, on the contrary, * * * the death of said Robert M. Stott arose out of an accident which occurred upon the navigable waters of the United States within the meaning of the Longshoremen's and Harbor Workers' Compensation Act of the United States.”

By an amendment to the answer the defendant pleaded “that said Robert M. Stott at the time of and immediately before his accidental death, as described in the complaint, was assisting in the removal of railroad freight cars from a ferryboat which had been ferried across the Mississippi River from the Missouri side to the Illinois side of said river, which said ferryboat was owned, controlled and was then being operated by the defendant, and which said ferryboat was then manned by other of defendant's employees who then constituted the crew thereof; and this defendant says that at the time said Robert M. Stott fell into the Mississippi River and was drowned, both he and the defendant were engaged in maritime employment on the navigable waters of the United States, to wit, the Mississippi River, and that by reason of such employment and the fatal injuries sustained by Robert M. Stott, as aforesaid, both the defendant and said Robert M. Stott became and were subject to the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 901-950, and which act provides for the exclusiveness of liability, 33 U.S.C.A. § 905; and that pursuant to the provisions of said statute any right of action of the plaintiff under and pursuant to the Federal Employers' Liability Act, and/or Federal Safety Appliance Act, is barred and nullified, said Longshoremen's and Harbor Workers' Compensation Act specifically providing that said act shall be exclusive and in place of all other liability of this defendant to the plaintiff.” Wherefore the defendant contended the court had no jurisdiction and prayed that the cause be dismissed.

The plaintiff replied, admitting Robert M. Stott “did also work in, on and about defendant's cars while the same were on a certain ferry boat known as the ‘Steamer Willard V. King,’ and do work in connection with the removal of railroad cars on said boat”; that the steamer Willard V. King was operated between Illinois and Missouri over the Mississippi River, a part of the navigable waters of the United States. Denied that at the time of the death of Robert M. Stott he and the defendant were subject to the Longshoremen's Act, and denied “that said occurrence occurred upon the navigable waters of the United States”; denied that liability was governed by the Longshoremen's Act. Denied that the death of Robert M. Stott occurred while he was working on the navigable waters of the United States and before he had reached the land; and denied that the death arose out of an accident which occurred upon the navigable waters of the United States, within the meaning of the Longshoremen's Act. Denied that Robert M. Stott, “at the time of and immediately before his death * * * was assisting in the removal of railroad freight cars from a railroad ferry boat which had been ferried across the Mississippi from the Missouri side to the Illinois side of such river.” And denied that the parties were subject to the provisions of the Longshoremen's and Harbor Workers' Compensation Act, and “denies that pursuant to the provisions of said Longshoremen's and Harbor Workers' Compensation Act it has the effect of barring or nullifying the right of action of this plaintiff under and pursuant to the Federal Employers' Liability Act and the Federal Safety Appliance Act, or either of them, for the reason that the death of said Robert M. Stott, as pleaded in paragraph 8 of plaintiff's complaint, did not occur upon the navigable waters of the United States within the meaning of the said Longshoremen's Act, but, on the contrary, plaintiff alleges that the death of said Robert M. Stott, as pleaded in paragraph 8 of plaintiff's complaint, occurred at a time when he was not engaged in maritime employment on the navigable waters of the United States, and at a time and place when both the said Robert M. Stott and the defendant were engaged in interstate commerce and within the application of the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, and the Federal Safety Appliance Act, 45 U.S.C.A. §§ 1-16, and that liability between the parties is controlled by said Federal Employers' Liability Act and Federal Safety Appliance Act.”

Motions to direct a verdict for the defendant were offered at the close of the plaintiff's testimony, and of all the testimony.

After verdict, appellant's motions for judgment notwithstanding verdict and for new trial were denied.

Appellant operates lines of railroad in the States of Illinois and Missouri. He also operates the steamer Willard V. King on the Mississippi River as a car ferry between East Ivory, St. Clair county, Ill., and St. Louis, Mo. This car ferry is a river steamboat with two tracks running from stem to stern in the center of the boat. Each track is capable of carrying seven railroad cars.

The water stage of the Mississippi River has a maximum variation of forty feet, and the stage...

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