Swain v. Terminal. R. R. Ass'n of St. Lows

• Decision Date: 11 January 1927
• Docket Number: No. 19444.,19444.
• Citation: 291 S.W. 166
• Parties: SWAIN v. TERMINAL. R. R. ASS'N OF ST. LOWS.
• Court: Missouri Court of Appeals

291 S.W. 166

SWAIN v. TERMINAL. R. R. ASS'N OF ST. LOWS.

No. 19444.

St. Louis Court of Appeals. Missouri.

January 11, 1927.

Rehearing Denied February 21, 1927.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Action by James Swain against the Terminal Railroad Association of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

J. L. Howell and S. P. McChesney, both of St. Louis, for appellant.

Mark D. Eagleton, John F. Clancy, and Harry S. Rooks, all of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries, under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for the sum of $5,000, and the defendant appeals.

The plaintiff at the time of his injury was in the employ of defendant, and was engaged in work on the Eads Bridge, which spans the Mississippi river between St. Louis, Mo., and East St. Louis, Ill. The Eads Bridge is owned by the St. Louis Bridge Company, and the defendant operates and maintains the bridge under a lease from the St. Louis Bridge Company. Defendant is a common carrier for hire by railroad, engaged in interstate commerce. The bridge is one complete structure, having a lower deck over which defendant operates interstate trains and an upper deck over which travel interstate wagons, automobiles, pedestrians, a number of street car lines, and also electric interurban cars carrying passengers. Defendant charges toll for all such traffic, and permits the street cars and interurban cars to use the upper deck tracks.

At the time of the accident defendant was engaged in repairing the upper deck of the bridge, taking out old beams or girders and replacing them with new ones, which supported the floor and tracks of the upper deck and upper parts of the bridge. New girders were brought from Illinois to the place of work on the bridge by defendant on a flat car on the lower deck tracks, to be placed into the upper part of the bridge, and old girders were taken out and transported back to the Illinois side. The girders being put in were attached to the same structure that supports the lower deck as well as the upper deck. Defendant made all repairs on the bridge and maintained the entire structure. It was in removing the girders from the flat ear to the bridge to put them in the bridge, that plaintiff was injured. The girders were iron 1-beams, and weighed about 6,000 lbs. each. Plaintiff was an iron worker in the employ of defendant and was engaged in the above work.

Whether the particular place of work at the time of the accident was in Missouri or Illinois was a disputed question at the trial. Plaintiff's testimony tended to show that it was in Missouri, while defendant's evidence tended to show that it was in Illinois.

Defendant's answer admits that it is a corporation operating a railroad in the state Of Missouri and in the state of Illinois, and operating its railroad over the Eads Bridge, which spans the Mississippi river between the states of Missouri and Illinois, and that the plaintiff at the time of his injury was working on the Eads Bridge, and that at said time plaintiff was assisting in placing girders in the upper deck of the bridge and remodeling same.

The defendant insists here that the court below erred in refusing to give the instruction offered by defendant in the nature of a demurrer to the evidence at the close of plaintiff's case, because, though it appears that 'the defendant was engaged in interstate commerce as a common carrier by railroad, it was not shown that the plaintiff was employed by defendant in such interestate commerce, at the time of his injury.

By section 1 of the federal Employers' Liability Act of 1908 (U. S. Comp. St. § 8657), under which this suit is brought, it Is enacted:

"That every common carrier by railroad while engaging in commerce between any of the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works; boats, wharves, or other equipment."

In Second Employers' Liability Cases, 223 U. S. 1, loc. cit. 46, 32 S. Ct. 169, 173 (56 L. Ed. 327, 38 L. R. A. [N. S.] 44), the Supreme Court of the United States, discussing the constitutionality of the federal Employers' Liability Act of 1908, said:

"The clauses in the Constitution (art. 1, sec. 8, clauses 3 and 18) which confer upon Congress the power `to regulate commerce " "' among the several states' and `to make all laws which shall be necessary and proper' for the purpose have been considered by this court so often and in such varied connections that some propositions bearing upon the extent and nature of this power have come to be so firmly settled as no longer to be open to dispute, among them being these:

"1. The term `commerce' comprehends more than the mere exchange of goods. It embraces commercial intercourse in all its branches, including transportation of passengers and property by common carriers, whether carried on by water or by land.

"2. The phrase `among the several states' marks the distinction, for the purpose of governmental regulation, between commerce which concerns two or more states and commerce which is confined to a single state and does not affect other states, the power to regulate the former being conferred upon Congress and the regulation of the latter remaining with the states severally.

"3. `To regulate,' in the sense intended, is to foster, protect, control and restrain, with appropriate regard for the welfare of those who are immediately concerned and of the public at large.

"4. This power over commerce among the states, so conferred upon Congress, is complete in itself, extends incidentally to every instrument and agent by which such commerce is carried on, may be exerted to its utmost extent over every part of of such commerce, and is subject to no limitations save such as are prescribed in the Constitution. But, of course, it does not extend to any matter or thing which does not have a real or substantial relation to some part of such commerce.

"5. Among the instruments and agents to which the power extends are the railroads over which transportation from one state to another is conducted, the engines and cars by which such transportation is effected, and all who are in any wise engaged in such transportation whether as common carriers or as their employees.

6. The duties of common carriers in respect of the safety of their employees, while both are engaged in commerce among the states, and the liability of the former for injuries sustained by the latter, while both are so engaged, have a real or substantial relation to such commerce, and therefore are within the range of this power. * * *

"As is well said in the brief prepared by the late solicitor general: `Interstate commerce— if not always, at any rate when the commerce is transportation—is an act. Congress, of course, can do anything which, in the exercise by itself of a fair discretion, may be deemed appropriate to save the act of interstate commerce from prevention or interruption, or to make that act more secure, more reliable or more efficient. The act of interstate commerce is done by the labor of men and with the help of things; and these men and things are the agents and instruments of the commerce. If the agents or instruments are destroyed while they are doing the act, commerce is stopped; if the agents or instruments are interrupted, commerce is interrupted; if the agents or instruments are not of the right kind or quality, commerce in consequence becomes slow or costly or unsafe or otherwise inefficient; and if the conditions under which the agents or instruments do the work of commerce are wrong or disadvantageous, those bad conditions may and often will prevent or interrupt the act of commerce or make it less expeditious, less reliable, less economical and less secure. Therefore Congress may legislate about the agents and instruments of interstate commerce, and about the conditions under which those agents and instruments perform the work of interstate commerce, whenever such legislation bears, or in the exercise of a fair legislative discretion can be deemed to bear, upon the reliability or promptness or economy or security or utility of the interstate commerce act.'"

These expressions of the Supreme Court, though uttered in the discussion of the constitutionality of the federal Employers' Liability Act, have nevertheless an important bearing upon the proper construction of the act.

In Baltimore & Ohio Southwestern R. Co. v. Burtch, 263 U. S. 540, 44 S. Ct. 165, 68 L. Ed. 433, an injury to an employee of the carrier, occurring while he was engaged in...