Swain v. Terminal Railroad Association of St. Louis, a Corp., . *

• Citation: 291 S.W. 166,220 Mo.App. 1088
• Parties: JAMES SWAIN, RESPONDENT, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, A CORPORATION, APPELLANT. *
• Decision Date: 11 January 1927
• Court: Court of Appeal of Missouri (US)

291 S.W. 166

220 Mo.App. 1088

JAMES SWAIN, RESPONDENT, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, A CORPORATION, APPELLANT. *

Court of Appeals of Missouri, St. Louis

January 11, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon Granville Hogan, Judge.

AFFIRMED.

Judgment affirmed.

J. L Howell and S. P. McChesney for appellant.

(1) The court erred in refusing to give the instruction offered by the defendant at the close of plaintiff's case. (a) Because not only must the carrier be engaged in interstate commerce at the time of the accident, but also the person injured must be employed by the carrier in such commerce. Shanks v. Delaware, Lackawana & Western Ry., 239 U.S. 556. (b) Because at the immediate time that the accident happened the track upon which the flat car was standing and upon which plaintiff was working was withdrawn from commerce and the work being done by plaintiff at the time in placing floor girders in the upper deck was not in furtherance of this defendant's interstate commerce in operating its railroad in interstate commerce. Industrial Commission v Davis, 259 U.S. 556. (2) The court erred in giving plaintiff's instruction No. 1 purporting to cover the whole case, because said instruction left out one of the main defenses made by defendant, which was whether the plaintiff himself at the time was engaged in interstate commerce. Clark v. Hammerle, 27 Mo. 55. (3) The court erred in refusing defendant's instructions I and M. (a) While usually a question of law for the court, in this case, under the pleadings and evidence, it was a question of fact for the jury under proper instructions. Myers v. C. B. & Q. R. R. Co., 296 Mo. 239. (b) Because under the pleadings and evidence adduced no instruction was given for the defendant submitting its theory of the law. Harris v. Railroad, 203 Mo.App. 324. (4) The court erred in excluding from the evidence the report or ruling of the Interstate Commerce Commission offered in evidence by the defendant, in support of the defense pleaded in its answer. 4 Fed. Stat. Ann. (2 Ed.), 495, sec. 19a (a), sec. 19a (d). (5) The court erred in excluding from evidence the Illinois Compensation Act, pleaded in defendant's answer as a defense, because the evidence was controverted as to whether the plaintiff was engaged in interstate commerce at the time of his alleged injuries, and controverted as to whether he was on the west or east of the midline of the Mississippi River at the time of his alleged injuries. Because if the jury found plaintiff was not engaged in Interstate Commerce at the time of his alleged injuries and was working on the east side of the midline of the Mississippi River and was in the State of Illinois he could not recover in this action. Mitchell v. St. Louis Smelting & Refining Co., 202 Mo.App. 251.

Mark D. Eagleton, John F. Clancy and Harry S. Rooks for respondent.

(1) The court did not err in refusing to direct a verdict for defendant, because: (a) Plaintiff's evidence showed that he was injured in Missouri while unloading material brought from Illinois, and under that state of facts would be engaged in interstate commerce. B. & O. S.W. Railroad v. Burtch, 263 U.S. 540, 68 L.Ed. 433. (b) Further, for the reasons stated under point 2 (b), plaintiff was, as a matter of law, engaged in interstate commerce, and the Federal Employers' Liability Act applied irrespective of whether the injury occurred in Illinois or in Missouri. (2) (a) Plaintiff's instruction No. 1 required the jury to find that the plaintiff "was engaged in his duties for defendant in and about the repairing of the aforesaid bridge, and that the repairs which were then and there being made were incident and necessary to the proper maintenance of said structure, and were to form a permanent part thereof, and that the girders mentioned in evidence, when placed in said structure, did aid and facilitate the handling of interstate commerce for the defendant and were a necessary and permanent part of said structure." Under those facts plaintiff was engaged in interstate commerce, and the Federal Employers' Liability Act applied. Pedersen v. Railroad, 229 U.S. 146. (b) Further, the undisputed facts show, as a matter of law, that plaintiff was engaged in interstate commerce, and that the Federal Employers' Liability Act applied. It conclusively appeared that defendant was a common carrier for hire by railroad using said bridge in interstate commerce for the defendant and were a necessary and permanent and that plaintiff was repairing the bridge for defendant. Pedersen v. Railroad, 229 U.S. 146. If the upper decks were not repaired, the interstate commerce on the lower deck would be endangered and ultimately stopped (B. & O. Railroad v. Darling, 3 F. [2nd] 987, 988). The bridge being a single integral structure, the part above the lower deck was part of defendant's railroad facilities used in interstate commerce. Under the laws of both Missouri and Illinois the defendant, as lessor (or licensor), is liable for negligence of the lessee (or licensee) railways using the upper deck. Lucas v. Peoria & Eastern Ry. Co., 171 Ill.App.1, 4; R. S. 1919, secs. 9879, 9880; Shaffer v. Ry. Co., 300 Mo. 477; Brady v. Railroad, 206 Mo. 509; Chicago Rys. Co. v. Kramer, 234 F. 245. In view of defendant's liability as above stated, defendant must be construed as operating the railways using the upper deck in deciding whether the Federal Employers' Liability Act applies. N. C. Railroad v. Zachary, 232 U.S. 248; Spaw v. Ry. Co., 198 Mo.App. 552; Southern Ry. Co. v. Lloyd, 239 U.S. 496, and cases cited supra under preceding paragraph. The court takes judicial notice, not only of the Eads Bridge as a historic structure and engineering feat, but also its use by carriers in interstate commerce. Brewer v. Railroad Co., 259 S.W. 825. Further, although the Federal Employers' Liability Act requires that the employer be a common carrier by railroad engaged in interstate commerce, and that the employee when injured shall be engaged in interstate commerce, it does not expressly require that the injured employee shall be engaged in the employer's railroad interstate commerce. Arguendo, see Second Employers' Liability Cases, 223 U.S. 1, holding that the instrumentality or employee causing the injury need not be engaged in interstate commerce. (3) (a) Defendant's instructions I and M were properly refused, because they were ambiguous, misleading, contained conclusions of law, and erroneously declared as a matter of law that plaintiff could not be engaged in interstate commerce unless the upper deck was used by defendant in its interstate railroad business. And said instructions ignore the evidence of plaintiff tending to show that he was unloading an interstate shipment. See point 1 (a). (b) The plaintiff was, as a matter of law, engaged in interstate commerce, and the Federal Employers' Liability Act applied; hence these instructions submitting matters of fact pertaining thereto were unnecessary. See point 2 (b), supra. (c) Instruction M erroneously assumed that the upper deck of said bridge was not used as an instrumentality by the defendant in the operation of its railroad in interstate commerce, and failed to require a finding of that fact, which, even under defendant's theory, should have been left to the jury and not assumed. (4) (a) The ruling of the Interstate Commerce Commission classifying the physical properties of defendant for valuation purposes was not competent to prove any issue in this case. (b) Further, since plaintiff was, as a matter of law, engaged in interstate commerce, for reasons stated ante under point 2 (b), the evidence could not affect the result. (c) If the ruling was matter of fact, it was incompetent, because not binding on the plaintiff, and not directed to the issues involved in this case; if the Commission's ruling was matter of law, the court took judicial notice of it and evidence thereof would not be necessary. (d) The burden is upon appellant to prove error and not upon respondent to disprove it. The presumption is that the trial court did not err. (5) Evidence of the Illinois Workmen's Compensation Act was inadmissible because immaterial. Irrespective of whether plaintiff was injured in Illinois or in Missouri, he could recover by the petition in this action only under the Federal Employers' Liability Act. Miller v. Schaff, 228 S.W. 488. The fact that by amendment the plaintiff could have changed the petition so as to recover under State laws does not affect the limitation of his right to recover under the theory pleaded. Under the present petition the plaintiff had to recover under the Federal Employers' Liability Act or not at all.

SUTTON, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.

This is an action to recover damages for personal injuries under the Federal Employers' Liability Act. 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, Missouri, and East St. Louis, Illinois. 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...