Trout v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 05 January 1931
• Docket Number: No. 16916.,16916.
• Citation: 39 S.W.2d 424
• Parties: TROUT v. CHICAGO, R. I. & P. RY. CO.
• Court: Missouri Court of Appeals

39 S.W.2d 424

TROUT v. CHICAGO, R. I. & P. RY. CO.

No. 16916.

Kansas City Court of Appeals. Missouri.

January 5, 1931.

Rehearing Denied January 26, 1931. Certiorari to Supreme Court of Missouri Denied March 16, 1931. Certiorari to Supreme Court of United States Denied May 15, 1931.

Appeal from Circuit Court, Jackson County; Ben Terte, Judge.

Action by Harry C. Trout against the Chicago, Rock Island & Pacific Railway Company. From a final judgment for the plaintiff, after a remittitur was required, defendant appeals.

Affirmed.

Conrad & Durham, of Kansas City, for appellant.

Jacobs & Henderson and Thos. E. Deacy, all of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. The jury returned a verdict in favor of plaintiff in the sum of $20,000.00, but the court required a remittitur of $16,000.00 of this sum. A final judgment resulted in favor of plaintiff in the sum of $4,000.00. Defendant has appealed. The sole issue presented for determination in this appeal is whether plaintiff was engaged in interstate commerce at the time of his injury.

Defendant is a corporation, organized and existing under the law, and doing business as a common carrier in both interstate and intrastate traffic and, as such, does general railroad work in Kansas City, Missouri, where it maintains a freight house, switch yards, loading and unloading docks, used in carrying on its business. The defendant maintains its roundhouse and general freight yards in Kansas City, Kansas. The roundhouse is two miles distant from the Missouri yards.

On November 2nd, 1923, and prior thereto, plaintiff was in the employ of defendant as fireman of a switch engine and was specially assigned to do switching in defendant's yards in Kansas City, Missouri. These yards extended from Twelfth Street on the north to Sixteenth Street on the south, and east of Genesee Street. Defendant maintains in said yards various tracks which serve freight houses and loading and unloading docks, for the receipt and dispatch of freight. The yards are located east of the Missouri-Kansas State line. Ninety-one and a half feet west of the state line is the Kaw river bridge of defendant, over which traffic is carried between the general freight yards in Kansas City, Kansas, and the freight yards in Kansas City, Missouri.

It appears that the main line track in defendant's Missouri yards runs south for a distance, curves to the west, crosses the state line and the Kaw river bridge, into Kansas; that at a point south of the yards in question there is a connecting track which extends south into a track of the Santa Fé Railroad and other railroads south of said yards and east of the state line. Plaintiff testified there was a connection south of the yards in question and east of the state line with the Kansas City Connecting Railroad but he did not know whether this connecting track for other roads passed into Kansas. However, he did testify that he had been employed on crews which had taken cars out of the yards in question over one of these connecting routes in Missouri.

The fact that the Missouri yards were connected with tracks of other railroads than defendants was testified to by defendant's witness, Reeves. He stated that the yards in question, at a point south, were connected with the Kansas City Connecting Railways, and that this track served all other railroads through their physical connections; that cars could be sent over this track to the stock yards, and that it was possible cars could be routed over this track into the Union Station in Kansas City, Missouri.

The evidence further shows that on November 2nd, 1923, which was the day of his injury, plaintiff reported for work at the roundhouse in Kansas City, Kansas; that he fired the engine and rode thereon to his place of work at the freight yards in Kansas City, Missouri. There was evidence that part of the crew of which plaintiff was a member reported at the roundhouse in Kansas City, Kansas, and another member reported at the yards in Kansas City, Missouri. The said part of the crew was required to report for work at the roundhouse in Kansas City, Kansas, at 4 p. m., and their hours were from 4 to 12 p. m.

Plaintiff testified that, on the day of his injury, he reported for duty at the usual hour; that he fired the engine which took part of the crew from the roundhouse in Kansas City, Kansas, across the Kaw river bridge and the state line into the yards in Kansas City, Missouri. According to plaintiff's testimony, on said day, his engine and crew had been placing empty cars for loading and all of said cars were found on tracks in the Missouri yards when they brought the engine from Kansas. He stated that after the crew had reported for work they engaged in "kicking" empty cars in on switches; that they had worked with nothing but empty cars; that the crew had not hauled any "drag" on that day from Kansas into Missouri; that on the day of his injury, and prior thereto, his crew had not "spotted" any cars; that they merely "kicked" the "empties" in on the switch tracks and that it was necessary, later, to "spot" them where they could be loaded.

There is no evidence that the empty cars which plaintiff assisted in handling on the day in question were ever loaded, or that they ever reached the Kansas yards, or that they ever went to any state outside of Missouri, or, in fact, that they were ever moved.

Plaintiff testified that the switch crew was given twenty minutes for luncheon during the period of their eight hours' employment and this period was taken at some convenient time; that his injury occurred at about 8:30 to 9 o'clock; that he ate his lunch at a restaurant near Sixteenth on Genesee Street in Kansas City, Missouri, and had started back to his engine which had been parked on No. 6 track at the north end of the yards near Twelfth Street in said city; that, in returning to his work, he boarded the steps of the tender of another engine to ride to the point where his engine was standing; that he was injured by being caught between said steps and a freight car standing on a spur track.

Defendant's witnesses testified to the effect that both empty and the loaded cars were brought from the Armourdale yards in Kansas City, Kansas, across the state line to the Missouri yards and that it was impossible for cars to be brought in to or taken from the Missouri yards without them passing over the state line out of or into the Kansas yards. The testimony in behalf of the defendant, further, was to the effect that, after the loaded cars reached the Missouri yards, they were unloaded and the empty cars held in the said yards and later loaded if, and when, needed.

However, there was no direct evidence that the empty cars which plaintiff stated he had been switching, prior to his injury, had come from the Kansas yards. They might have come into the Missouri yards from the other sources that we have mentioned. There was testimony by defendants' witnesses that plaintiff and his crew, on the day in question, had been handling loaded cars brought over from Kansas, and that, in fact, that crew, in coming across the line from Kansas, had brought a drag of mixed loaded and empty cars. Plaintiff positively denied this and the issue therefore was for the jury to determine.

The answer, among other things, pleads that plaintiff, when he was injured, was engaged in interstate commerce and, therefore, the Federal Employers' Liability Act (45 US CA §§ 51-59) applied. Defendant now insists that its instruction in the nature of a demurrer to the evidence should have been given for the reason that the undisputed facts show that plaintiff was engaged in interstate commerce at that time.

There is no dispute between the parties that plaintiff was in the course of his employment at the time he was injured. The controversy is as to whether he was at that time engaged in interstate commerce. If he was, plaintiff admits that defendant's instruction in the nature of a demurrer to the evidence should have been given for the reason he recovered on the theory that plaintiff was not so engaged at the time of his injury.

It is well settled that where one is not directly engaged in the work for which he is employed, still, if he is on or about his master's premises, engaged in some act incident to his regular employment, he is still in the employ of his master. Brock v. R. R., 305 Mo. 502, 266 S. W. 691, 36 A. L. R. 891; Carter v. R. R., 307 Mo. 595, 271 S. W. 358. And, as before stated, it is not disputed that plaintiff in this instance in returning from his lunch was engaged in the work for which he was employed. The question arises as to the exact nature of his employment at that time, whether in intrastate or interstate commerce. The character of plaintiff's employment at the time in question should be determined by the character of his day's work as a whole and, if part of that work was interstate commerce, then his employment at the time of his injury was incident to that character of commerce, even though some of his work may have been intrastate commerce. In Westover v. Wabash Ry. Co. (Mo. Sup.) 6 S.W.(2d) 843, 847, the court said:

Plaintiff's "work consisted in switching both interstate and intrastate cars.

His preparations for lunch partook of the character of his work as a whole. They were incidents of his work in switching interstate cars, although they were also incident to his work in switching intrastate cars. But because they were incident to and a part of his work in interstate commerce he was, at the time he suffered injury, employed in interstate commerce."

In the case of Erie R. R. Co. v. Winfield, 244 U. S. 170, 37 S. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662, plaintiff took his engine where it was to remain for the night and was injured while leaving the yards. The court in that case said (loc. cit. 173 of 244 U. S., 37 S. Ct. 556, 557):

"Like his trip through the yard...