Thompson v. Wabash Railroad Company
| Decision Date | 02 December 1914 |
| Citation | 171 S.W. 364,262 Mo. 468 |
| Parties | ETHEL THOMPSON v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Randolph Circuit Court. -- Hon. A. H. Waller, Judge.
Reversed and remanded (with directions).
J. L Minnis and Robertson & Robertson for appellant.
(1) The petition does not state a cause of action and the court erred in overruling defendant's objection to the introduction of any evidence thereunder. The petition disclosed that defendant was engaged in interstate commerce and decedent employed in such commerce, therefore the only cause of action that could have arisen was by virtue of the Federal Employers Liability Act and there could be no action maintained under Sec. 5425, R. S. 1909. Railroad v. Vreeland, 227 U.S. 66; Second Employers Liability Cases, 223 U.S. 54; Railroad v. Alabama, 128 U.S. 99; Railroad v Hefley, 158 U.S. 104; Henderson v. New York, 92 U.S. 271; Gaslight Co. v. Light Co., 115 U.S. 661; Morgan's Co. v. Board of Health, 118 U.S. 464; State v. Railroad, 238 Mo. 21; Railroad v Birch, 224 U.S. 547; State v. Railroad, 212 Mo. 658; Rich v. Railroad, 166 Mo.App. 389; Thornton on Federal Employers' Liability and Safety Appliance Acts (2 Ed.), sec. 160, see also Appendix "A" to "H," pp. 397 et seq.; McCulloch v. Maryland, 4 Wheat. 415; Adams Express Co. v. Croninger, 33 U.S. S.Ct. 148; Railroad v. Ellis, 153 S.W. 701; Railroad v. Lester, 149 S.W. 841. (2) The court erred in refusing to instruct a verdict for defendant at the close of the evidence for the plaintiff and at the close of all the evidence. Because the evidence showed defendant was engaged in interstate commerce and decedent was employed in such commerce at the time of his death.
M. J. Lilly and Phillips & Phillips for respondent.
(1) The petition states a cause of action under Sec. 5425, R. S. 1909, and not under the Federal Employers' Liability Act as contended by appellant. It appears from the petition that plaintiff's husband while in the employ of the defendant came to his death by the negligence of co-employees, and that he died from an injury occasioned by the negligence of certain servants of defendant whilst running, conducting and managing a locomotive and train of cars, which would bring plaintiff within the provisions of section 5425; but it does not appear that either deceased or his co-employees, by whose negligence he was killed, were engaged in interstate commerce at the time, which would be necessary in order to create a liability against defendant under the Federal Employers' Liability Act. The petition contains an allegation to the effect that the train, on which deceased was serving as a locomotive fireman at the time of the collision which resulted in his death, was being operated from Moulton, Iowa, to Moberly, Missouri, but there is no allegation that it was laden with goods, wares or merchandise or that it was carrying passengers, being transported from one State to the other, and the evidence shows that the train was composed entirely of empty cars. A train composed of empty cars destined from a point in one State to a point in another State to procure a load is not engaged in interstate commerce. Railroad v. Virginia, 93 Va. 749; 7 Cyc. 417; 34 L.R.A. 105. Commerce among the several States includes the transportation of passengers and property from one State to another. Smith v. Turner, 7 How. (U.S.) 401; Addyston Pipe Co. v. U.S. 175 U.S. 241; Ferry Co. v. Pennsylvania, 114 U.S. 203; In re Grand Jury (U.S.), 62 F. 828. The facts of this case differentiate it from the case of Rich v. Railroad, 166 Mo.App. 379, to which appellant refers as a case in point, and what is said there has no application here. The rule announced in Rich v. Railroad, supra, is "a car laden with goods and being moved from a point in one state to a point in another is impressed with the character of interstate traffic which will follow and attend the shipment until the transit ceases." With the rule thus announced respondent finds no fault; but in the case at bar where the cars composing the train were empty it has no application. In this case nothing was being transported -- no passengers, no property; only that which might be made an instrument of commerce -- a train of empty cars, was being moved. (2) The case was properly submitted to the jury by appropriate instructions which correctly declared the law as applied to the facts of the case developed by the testimony. The evidence established a cause of action in favor of plaintiff and against defendant under Sec. 5425, R. S. 1909, and does not show that her husband for whose death damages are asked was engaged in interstate commerce at the time of the injury resulting in his death.
The plaintiff instituted this suit in the circuit court of Randolph county, against the defendant, to recover $ 10,000 damages, claimed to have been sustained by her by reason of the alleged negligence of the defendant in killing her husband, R. W. Thompson, a railroad fireman, while in the employ of the company. The suit was brought under section 5425, Revised Statutes 1909.
A trial was had in the circuit court which resulted in a judgment in favor of the plaintiff for the sum of $ 10,000. In due time and in proper form the defendant appealed the cause to this court. The petition was in conventional form and properly stated a case under said section of the statute.
Prior to answering, and in proper time and due form, the defendant filed a petition and bond for a removal of the cause to the circuit court of the United States, for the Northern Division of the Eastern District of Missouri.
The petition set out that the action arose under the act of Congress approved April 22, 1908, entitled, "An Act relating to the liability of common carriers by railroad to their employees in certain cases;" that it appeared from plaintiff's petition that the defendant was engaged in, and decedent was employed in, interstate commerce at the time of his death ( the averments of plaintiff's petition); that the question in the suit was whether plaintiff was entitled to recover under the act of Congress approved April 22, 1908, and that the suit involved a controversy with respect to the true meaning and intent of the act of Congress and its operation and effect upon the alleged facts of plaintiff's petition. This petition was overruled and exceptions were duly saved.
Defendant's amended answer, filed March 14, 1911, upon which it went to trial, was a general denial; also it set out that defendant was engaged in commerce between the States and that decedent at the time of his death was employed in such commerce; that plaintiff was not the administratrix or personal representative of decedent and the action was not brought by her in such capacity, as provided by the act of Congress of April 22, 1908, and the plaintiff was not entitled to maintain the action as the widow of decedent. Further that the State circuit court had no jurisdiction, but that the jurisdiction was in the United States circuit court.
The answer then alleged that the collision was the result of decedent's own negligence and further as the result of his own negligence directly contributing with others with whom he was engaged in operating the train.
The answer also set up the unconstitutionality of the act of Congress approved April 5, 1910, conferring jurisdiction on State courts, as in conflict with section 1 of article 3 of the Constitution of the United States and certain amendments thereto, as well as certain provisions of the Constitution of the State of Missouri.
The reply was a general denial.
At the beginning of the trial the defendant objected to the introduction of any evidence under the petition for the reason that it did not state facts sufficient to constitute a cause of action against the defendant; that the plaintiff could not maintain the action because it arose under the "Federal Railroad Employers' Liability Act of April 22, 1908;" and that the court had no jurisdiction of the cause.
This objection was overruled and exceptions were duly saved.
The facts are few and not disputed; and are substantially as stated by counsel for respondent:
Respondent's husband, R. W. Thompson, while in the employ of appellant as a locomotive fireman on an extra freight train, was killed in a collision between said freight train and one of defendant's passenger trains, on defendant's line of railroad, at a point about one and one-half miles south of Glenwood, Missouri, on the 28th day of August, 1909. Within six months thereafter, plaintiff, the widow of deceased, brought this action against defendant to recover damages for the death of her said husband, under the provisions of section 5425, Revised Statutes 1909, it being claimed by plaintiff that her husband came to his death by reason of the negligence of certain of his co-employees, namely, the engineer and conductor in charge of said freight train, in operating same in so negligent a manner as to cause it to run into and against and to collide with said passenger train.
The defendant was operating a railroad for the transportation of freight and passengers from Moberly, in the State of Missouri, to Moulton and other points in the State of Iowa.
The extra freight train on which plaintiff's said husband was serving as fireman was in charge of Finis McLeen as engineer and Warren Cundiff as conductor. There were also a head and rear brakeman on the train. It left Moulton, Iowa, for Moberly, Missouri, about 8:45 the morning of the collision and made but one stop thereafter prior to the collision; that stop...
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