Walls v. Thompson

• Citation: 119 S.W.2d 43
• Decision Date: 05 July 1938
• Docket Number: No. 5881.,5881.
• Parties: WALLS v. THOMPSON.
• Court: Court of Appeal of Missouri (US)

119 S.W.2d 43

WALLS v. THOMPSON.

No. 5881.

Springfield Court of Appeals. Missouri.

July 5, 1938.

Rehearing Denied August 10, 1938.

Appeal from Circuit Court, Stoddard County; James V. Billings, Judge.

"Not to be published in State Reports."

Action under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, by Lewis Walls against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, a corporation, for injuries sustained by plaintiff in carrying rock and other material used in riprapping defendant's railroad bed. Verdict and judgment for the plaintiff for $1,000, and defendant appeals.

Affirmed.

Thos. J. Cole, of St. Louis, and Dearmont, Spradling & Dalton, of Cape Girardeau, for appellant.

C. A. Powell, of Dexter, for respondent.

SMITH, Judge.

In this case the appellant makes a statement of the case, and the respondent adopts the statement of the appellant. We use this statement, which with slight alterations is as follows:

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, to recover damages for personal injuries alleged to have been sustained by plaintiff, an extra section laborer, employed by defendant.

The petition alleged that defendant was the duly appointed, qualified, and acting trustee of the Missouri Pacific Railroad Company, and was in charge of its assets, controlling and operating a railroad line through Stoddard County, Missouri, and was at all times engaged as a common carrier in hauling interstate commerce; that plaintiff was an employee of defendant engaged in carrying rock and other material used in rip-rapping the railroad bed in Stoddard County, Missouri, for the purpose of preserving said road bed and protecting it from overflow waters; that upon said track and bed the defendant was operating trains in interstate commerce; that the work of said employees was in the course of their employment and was for the purpose of furthering the business of defendant as a common carrier in interstate commerce; that while plaintiff was so engaged with other employees, including one Bill Hudson, the said Bill Hudson carelessly and negligently dropped one of the rocks, which said employees were using in connection with rip-rapping said road bed, upon plaintiff's foot, mashing and bruising one of the toes of plaintiff's right foot.

The petition further alleges that the wound caused by the dropping of said rock became infected and plaintiff was taken to a hospital for medical treatment; that he walked with a limp as a result of said injuries; that he suffered pain and mental anguish and had been unable to work since suffering said injuries. Plaintiff prayed for $5,000 actual damages.

After the defendant's general demurrer to the petition had been overruled, the defendant, by his second amended answer, admitted that the defendant was the duly appointed, qualified, and acting trustee of the Missouri Pacific Railroad Company, and was in possession of the property, managing and operating the same as trustee; admitted that the property of said railroad company was being operated as a common carrier engaged in hauling interstate commerce, and in operating trains over and along its tracks for the purpose of carrying interstate commerce in and through Stoddard County, Missouri, at and along the tracks at the time and place where plaintiff alleged that he sustained an injury.

The answer further contained a general denial of each and every other allegation in plaintiff's petition contained, and expressly denied that plaintiff was injured through any negligence or carelessness of Bill Hudson. It alleged that the injury, if any, was wholly accidental and unavoidable; pleaded assumption of risk by plaintiff; the contributory negligence of the plaintiff in failing to see and observe the work and stay out of the way of his co-employees; and averred that the infection, if any, developed as a result of contributory negligence of the plaintiff in failing to report said injury or secure proper medical attention and treatment. The answer also pleaded a release by plaintiff. The reply was a general denial.

The trial was had to a jury which returned a verdict in favor of plaintiff for $1,000. After motions for new trial and in arrest of judgment were filed by the defendant, and overruled by the court, defendant duly perfected his appeal to this court.

The case is presented to us under five assignments of error, which we shall consider in the order presented to us by the defendant.

The first assignment presented is that the court erred in refusing to give defendant's Instruction "B" in the nature of a demurrer to the evidence, and this point is presented under five subdivisions as follows:

"(a) The evidence failed to establish that plaintiff was engaged in interstate transportation.

"(b) There was no substantial evidence that plaintiff's co-employee dropped a rock on plaintiff's foot.

"(c) There was no substantial evidence of negligence by the co-employee.

"(d) Plaintiff assumed the risk which resulted in his injury as a matter of law.

"(e) Under the evidence in the case plaintiff's injuries, if any, were the result of accident."

We must hold against the first contention of the defendant that the evidence failed to show that plaintiff was engaged in interstate transportation. Defendant's statement admits that the property of the railroad company was being operated as a common carrier engaged in hauling interstate commerce, and operating trains over and along its tracks for carrying interstate commerce in and through Stoddard County, Missouri at the time and place where plaintiff alleged that he sustained an injury.

We think our courts have generally held, and we so hold here, that a person is engaged in interstate transportation, or work so closely related thereto as to be a part of it, when he is preparing a railroad track by rip-rapping it, or otherwise repairing it, to protect it from washing away by excessive rains or floods, when that track is being used in interstate transportation, as the evidence in this instance shows that the track was so used. The evidence further shows that the plaintiff was engaged in working upon said track at the particular time and for the purpose of keeping said track in repair and by carrying a rock for that particular purpose, which rock was thrown down or dropped by a fellow servant because it did not fit the place for which plaintiff had carried it, and when it was thrown down or fell it struck plaintiff's foot or toe and injured him.

Many cases could be cited sustaining this conclusion. Among these are the following: Milburn v. Chicago, M., St. P. & P. R. Co., 331 Mo. 1171, 56 S.W.2d 80; Montgomery v. Terminal R. Ass'n, 335 Mo. 348, 73 S.W.2d 236; Clevinger v. St. Louis-S. F. Ry. Co., Mo.Sup., 109 S.W.2d 369; Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas.1914C, 153.

It is not enough to say that plaintiff assumed the risk or that the injury was the result of an accident. The evidence in this case was sufficient to go to the jury and it was not error to overrule the demurrer to the evidence.

The second assignment of error is that the court erred in overruling defendant's demurrer to the petition because it fails to state facts which show that plaintiff was engaged in interstate transportation. We quote a part of the petition, as follows:

"Plaintiff further states that the defendant, at the present time and at all times herein mentioned, owned, controlled and operated railroads running into and through Stoddard County, Missouri, and was at all such times a common carrier engaged in hauling interstate commerce.

"For his cause of action plaintiff states that in the month of February, 1936, he was engaged as an employee of the defendant, and that it was his duty as such employee to carry rock and other material used in rip-rapping the railroad bed belonging to the defendant in Stoddard County, Missouri, for the purpose of preserving said railroad bed and protecting it from overflow waters, and that said railroad bed at the time had tracks upon it belonging to the defendant, upon which said track and bed the defendant was at the time engaged in operating trains over and upon the same as a common carrier for the purpose of carrying interstate commerce, and that the defendant was at the time and has been continuously since that time engaged as a common carrier in interstate commerce upon and along said track and railroad bed. Plaintiff states that at the time he was so engaged and occupied as the employee of the defendant, he and other employees, including one Bill Hudson, who were engaged in like work, were working under the direction and supervision of a foreman, who was also employed by the defendant.

"Plaintiff states that while he and the other said employees were so engaged, the said Bill Hudson carelessly and negligently dropped one of the rocks which said employees were using in connection with rip-rapping said railroad bed upon the foot of the plaintiff, causing one of the toes on the right foot of the plaintiff to be mashed and bruised, and that at the time of the dropping of said rock by the said Bill Hudson, the said Bill Hudson, the plaintiff, and the other said employees were engaged in work in connection with rip-rapping said railroad bed; that said work and acts were in the course of their employment by the defendant; and that it was for the purpose of furthering the business of the defendant as a common carrier in interstate commerce.

"Plaintiff states that said wound caused by the dropping of said rock upon his foot became infected and rendered the plaintiff unconscious and that on account thereof it was necessary that he be taken to a hospital for treatment, where the plaintiff was kept several days. Plaintiff states that since his return from said hospital he has been under the care of a physician and that he has incurred expenses for medical...