Trowbridge v. Kansas City & Westport Belt Railway
| Decision Date | 04 October 1915 |
| Citation | 179 S.W. 777,192 Mo.App. 52 |
| Parties | WILLIAM EDWARD TROWBRIDGE, Respondent, v. KANSAS CITY & WESTPORT BELT RAILWAY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas, Chas. N. Sadler and C. A. Stratton for appellant.
Watson Gage & Watson and Wright & Alford for respondent.
--In this case damages are sought, under the Federal Employer's Liability Act, for personal injuries received by plaintiff while employed as a switchman in defendant's yard.
The principal contention of the defendant, and the one to be first considered, (since it will effectually dispose of the case if defendant is right), is that plaintiff was not engaged in interstate commerce at the time he received his injury. To create a right of recovery under the Federal act in question, not only must the employer be a common carrier by railroad engaged in interstate commerce, but the injury must have occurred "when the particular service in which the employee is engaged is a part of interstate commerce." [Illinois Central R. Co. v. Behrens, 233 U.S. 473, 58 L.Ed. 1051, 34 S.Ct. 646.]
There is no question but that defendant was, and is, a common carrier by railroad and it was, and is, engaged in interstate commerce. Defendant's railroad is about nine miles long and extends from 39th street and Westport avenue in Kansas City, Missouri, to Dodson, Missouri. This last-named point is not far from the Kansas line. At Dodson the road connects with the Missouri Pacific, the Kansas City Southern, and the St. Louis & San Francisco railroads. It receives freight in carload lots coming from points on these railroads outside of the State of Missouri consigned to points on defendant's line of railway within this State. Defendant operated its road under a regular tariff filed with the Interstate Commerce Commission, and under this tariff collected its charges on all cars that came to it from Kansas or elsewhere outside of Missouri. These incoming cars were billed to Dodson, Missouri, but as a matter of fact, they went on through to the various points along defendant's line of railway, being transported by defendant from Dodson to their various destinations. When cars thus received and transported had been unloaded by their consignees, defendant took them back to Dodson and set them on its switches from whence they were taken by the particular connecting road over which they had come to defendant's line. Empty cars, thus taken back to Dodson by defendant, were not billed to any point, but were merely taken there where the road which had brought them loaded to defendant either sent them back to point of origin or elsewhere as it chose. Defendant, in bringing the empty cars back to the road it got them from, did so without ascertaining or inquiring where they were going after being taken charge of by the connecting road.
On July 3, 1913, a box car loaded with brick and consigned to Coen Building Material Company, located on defendant's line, was received at Dodson, Missouri, by defendant, having been shipped from Buffville, Kansas, over the Missouri Pacific, and was transported from Dodson by defendant to its consignee. The car was unloaded, and on July 8th plaintiff was injured while engaged, as an employee of defendant, in switching the car preparatory to returning it to Dodson to be there again taken charge of by the Missouri Pacific. At that time the Missouri Pacific Railroad Company had given orders at Dodson that all box cars should be sent west to a point in Kansas to be there loaded with wheat. After plaintiff's injury, the car he was attempting to couple was on the same day taken to Dodson from whence it was on the 9th of July, by the Missouri Pacific Railroad, sent west to Osawatomie, Kansas, the place where said road was at that time sending every freight car suitable for hauling wheat to eastern markets, and from which place said cars were distributed to the points where they were needed for that purpose. The evidence further shows not only that that car, but others coming in loaded from Kansas, came on through Dodson, without unloading, to their destinations at points along defendant's line in Missouri, and that after defendant had delivered them to their consignees and they had been unloaded, defendant would return the cars to the Missouri Pacific at Dodson and from thence they would be taken west to the point from whence they originated. The train that took the particular car in question west from Dodson, Missouri, to Osawatomie, Kansas, was a local freight which ran every day from Osawatomie, Kansas, to Kansas City, Missouri, and return. Cars going west on that local went to Osawatomie from whence they were distributed to various points as herein before stated.
The disputed question now under consideration is whether the movement of the particular car sought to be coupled at the time of the injury was a part of interstate commerce. If so, then the particular service being rendered by the plaintiff, at the time he was hurt, was a part of such commerce, and, in that event, the Federal act applies.
Had the injury occurred during the movement of the loaded car prior to its delivery to the consignee, there could be no question but that plaintiff would have been engaged in interstate commerce. The shipment of the brick from Buffville, Kansas, to the Coan Building Material Company at a point on defendant's line in Missouri constituted interstate commerce; and the carrying of such loaded car by defendant from Dodson and its delivery to the consignee was a participation by defendant in such commerce. This is true notwithstanding the fact that the car was billed only to Dodson. While it and all other cars were billed to this point, yet, as stated, they went on through to the various consignees located along defendant's railroad. The work of defendant in taking the loaded cars from Dodson to the consignee on its route and then returning it after it had been unloaded to Dodson where it could be again taken possession of by the railroad over which it had come to defendant's line, was a participation by defendant in interstate commerce. And for this service it collected a charge from the Missouri Pacific which was included in the freight bill collected by the latter for the entire transportation. The carrying of the loaded car over the nine miles of defendant's road from Dodson to Westport avenue was as necessary a part of the carriage between shipper and consignee as the carriage from Buffville to Dodson. In performing the above-mentioned part of the transportation the defendant was also furnishing switch and terminal facilities for this shipment and for all others coming to it from the railroads connecting with it at Dodson. In the Interstate Commerce Act, as it now exists, the term "railroad" is defined to include "all switches, spurs, tracks, and terminal facilities of every kind used or necessary in the transportation of persons or property . . . and all freight depots, yards and grounds used or necessary in the transportation or delivery of any of said property." So that the participation by the defendant in the transportation of this shipment was undoubtedly a participation in interstate commerce. And this is true regardless of the fact that the car was billed to Dodson. Neither it nor other cars stopped there but went on through to the point of delivery. It is the nature of the service performed by the carrier and not the way in which goods are billed that determines whether the carriage is interstate or not. [Ohio Railroad Commission v. Worthington, 225 U.S. 101, 56 L.Ed. 1004, 32 S.Ct. 653; Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 55 L.Ed. 310, 31 S.Ct. 279.] The service performed by the defendant in the case at bar is quite of the same nature as that performed by the Chicago Junction Railway Company and the Union Stockyard & Transfer Company in the case of the United States v. Union Stockyard & Transfer Co., 226 U.S. 286. The railway in that case operated wholly within the city of Chicago and neither of the corporations issued through bills of lading. The Supreme Court held that the fact that the service is performed wholly in one State makes no difference if it is a part of interstate commerce; that "it is the character of the service rendered, not the manner in which the goods are billed, which determines the interstate character of the service;" and that the corporations were engaged in interstate commerce.
However in the case now before us, plaintiff's injury occurred after the car had been unloaded and while he was switching it preparatory to taking it back to Dodson where it could be taken possession of by the Missouri Pacific. Was the movement of this empty car a part of interstate commerce? We are of the opinion that it was under the circumstances disclosed by this case. In the first place, the service undertaken by the defendant when it received the loaded car from the Missouri Pacific at Dodson was not finished until it had transported the car to its consignee and had returned it empty to Dodson and placed it again at the disposal of the Missouri Pacific. Under these circumstances the particular trip of this car from Buffville, Kansas, might be said not to have ended until it was returned empty to Dodson, since it was not the purpose of anyone that the car, when unloaded, should remain at the point of delivery to the consignee. The return of the car to Dodson was a necessary part of the movement of any cars carrying commerce from the State of Kansas to points in Missouri on defendant's line. To enable the railroad, bringing freight from Kansas to such points, to continue...
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