Winterbottom v. Kurn

• Decision Date: 20 May 1940
• Docket Number: No. 19559.,19559.
• Citation: 141 S.W.2d 93
• Parties: WINTERBOTTOM v. KURN et al.
• Court: Missouri Court of Appeals

141 S.W.2d 93

WINTERBOTTOM v. KURN et al.

No. 19559.

Kansas City Court of Appeals. Missouri.

May 20, 1940.

Rehearing Denied June 10, 1940.

Appeal from Circuit Court, Jackson County; Emory H. Wright, Judge.

Proceeding under the Workmen's Compensation Act by William Winterbottom, claimant, opposed by J. M. Kurn and another, trustees, St. Louis-San Francisco Railway Company, employers. From a judgment of the circuit court reversing an award of the Compensation Commission in claimant's favor, claimant appeals.

Affirmed.

Brennan & Fraker, of Kansas City, for appellant.

J. W. Jamison, of St. Louis, for respondent.

BLAND, Judge.

This is an appeal by the claimant from a judgment of the trial court reversing an award of the Compensation Commission in his favor. The sole question raised upon the appeal is whether the Workmen's Compensation Commission had jurisdiction of the claim, it being defendants' contention that claimant, their employee, at the time of his injury, was engaged in work so closely connected with interstate transportation as to bring him exclusively under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

The facts show that the defendants operate an interstate railroad between Missouri and Kansas and other States; that in connection therewith they maintain what is known as the "KY" signal tower in Kansas City, Kansas, at a point about a mile from the Missouri State Line; that on November 2nd, 1937, the claimant, one of their employees, was injured by a particle of old paint, which he was scraping from a pipe or rod connected with the signal tower, lodging in his right eye.

There are a number of rods or pipes running near and parallel to each other and located about 10 or 12 inches above the ground and near to and connecting with the signal tower. Claimant had been assigned by his superior to the work of scraping these rods.

Defendants' double main line tracks pass by the signal tower. The tower, itself, is located at a point where the Missouri-Kansas-Texas Railroad Company (referred to in the evidence as the "Katy") maintains a switch yard along the side of the tracks of the defendants. This switch yard is composed of 35 or 40 tracks. The only connection this yard has with any railroad tracks is with those of defendants at said point. All cars moving into this switch yard are governed in their entrance therein by the man in the signal tower. However, the entrance to only two or three of these 35 or 40 tracks is controlled from the signal tower; the entrance to the others is operated by hand. There are also two industrial tracks (not a part of the Katy yards) controlled from the tower. There are 4 or 5 pipe lines or rods connected with these industrial tracks.

The uncontradicted testimony shows that the two main line tracks of defendants, which run past the signal tower, extend from the State of Missouri into Kansas, Oklahoma, Tennessee and other states. All of defendants' trains coming into Kansas City, Missouri, from Kansas and other states and all of their trains which originate in Kansas City, Missouri, bound for other states, are required to pass over the main line tracks and by the tower. The movement of these trains is controlled by employees of the defendants who are stationed at all hours during the day and night in the tower. The Missouri-Kansas-Texas Railroad Company, coming into Kansas City, Kansas, and Kansas City, Missouri, uses the defendants' main line tracks at the "KY" tower in order to get into and out of the Katy switch yard, and other railroads (which maintain their switch yards in Kansas City, Missouri) are required to use defendants' main line tracks in order to get into the switch yard of the "Katy".

There are located in the signal tower certain levers which are connected with rods or pipes on which claimant was working at the time he was injured. There are various semaphore signals and switches which govern the movement of trains passing the signal tower and entering and using the switch yard of the "Katy". These various semaphore signals and switches are operated through a movement of the levers located in the signal tower and the force exerted by the signal man in the tower in moving the levers is transmitted to the semaphore signals and switches, through and by means of the pipes or rods upon which the claimant was working at the time of his injury. The semaphore signals and switches are operated by the signal man in the tower and they can not be manipulated except through the pipes or rods upon which claimant was working at the time of his injury. The pipes or rods are the sole means by which the levers in the tower are connected with the switches and semaphore signals along the main line tracks of defendants and except for these pipes and rods the signal system can not be operated and interstate trains can not pass the tower. It would, therefore, appear that the tower and the semaphore, rods and switches connected therewith, are instrumentalities used in interstate transportation and that claimant, at the time of his injury was engaged in work so closely connected with interstate transportation as to practically be a part of it. See Shanks v. Delaware, Lackawanna & Western R. R. Co., 239 U.S. 556, 558, 559, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A.1916C, 797; Drew v. Missouri Pac. R. R. Co., 340 Mo. 321, 100 S.W.2d 516, 520, 521.

However, claimant insists that there is no testimony in the record as to the use made of the two industrial tracks, the entrance to which is controlled from the signal tower, whether they were used for interstate or intrastate business. Claimant also points out that it is impossible for this court to determine whether claimant was working on a pipe or rod which was connected with such industrial tracks. Claimant says that the burden was upon defendants to show that the work that claimant was engaged in at the time was that of interstate transportation or work so closely related thereto as to be practically a part of it.

There was no effort made in the trial before the referee to identify the particular rod or pipe upon which claimant was working at the time he was injured, among the other rods and pipes along side of it, as to what track or switch the rod in question connected. In fact, in his claim for compensation claimant stated: "Claimant engaged in scraping old paint from connecting rods of signal system and particles of such paint struck and lodged in right eye". (Italics ours). In the findings of the Commission it is stated claimant was injured "while engaged in scraping old paint from connecting rods in signal system". (Italics ours.) In his testimony, claimant, in referring to the character of work he was doing at the time said his work consisted of scraping rods or pipes, and not any particular rod or pipe. Even in claimant's brief, filed in this court, he says that he was "scraping old paint from connecting rods" of the signal system. (Italics ours.) It is, therefore, difficult to see how it could be now said that claimant was engaged in the particular work of scraping an individual rod or pipe, rather than said rods or pipes as a whole, upon which, the evidence shows, he had been directed to work.

However, even conceding that the work that claimant was doing cannot be said to have been work upon the rods, as a whole, (although it was his duty to scrape all of them as he had been directed) but that the matter must be treated as though claimant were working upon an individual rod, even under this theory, the evidence shows that all of the rods connect the tower with tracks branching from the two main line tracks of the defendants, and that it was necessary to have the semaphore signals and switches properly in place for interstate trains on defendants' main line for them to safely proceed past the signal tower.

In reference to this matter claimant testified:

"Q. And these rods that you were working on at the time you say you were injured, are connected with these levers that the tower man in that tower operates? A. Yes.

"Q. And when he moves one of those levers, that movement is transferred on to the various pipes and semaphore signals there by means of these rods that you were working on? A. Yes.

"Q. In other words, if a train wants to get in that yard or past that "KY" Tower, they can't pass until they get a signal from that tower man, can they? A. No sir.

"Q. And he gives those signals by the operation of the levers in the tower? A. Yes.

"Q. And these rods are connected with those levers, and part of the signal system? A. Yes, they are.

"Q. And they are necessary to the operation, for the operation of the signal system, aren't they? A. Yes.

"Q. In other words if the rods weren't there, the signal system couldn't operate and the switches couldn't operate. That is right, isn't it? A. Yes sir.

"Q. And if the rods that you were working on weren't there, as a matter of fact, trains couldn't come in and out of this yard and past that signal tower, could they? A. No. * * *

"Q. The main line of the Frisco— A. Yes.

"Q.—passes this KY Tower, doesn't it? A. Yes sir.

"Q. And these rods upon which you were working were connected with those tracks, weren't they? A. Yes sir.

"Q. And those tracks run from Kansas to Missouri, don't they? A. Yes.

"Q. And Frisco trains coming into Kansas City, Missouri, from Kansas City, Kansas, pass over those tracks? A. Yes, through trains does, yes sir.

"Q. Yes. Now you say while you were scraping paint from one of these switch rods— A. Yes. * * *

"Q. How many switch tracks were there, altogether? A. There are two switch tracks there.

"Q. How many sidings, switching tracks? A. Well, there aint really no passing track there.

"Q. Transfer tracks. A. Only the Katy, they come up there and cross over off the main line to get into the Katy yards. Well, that kind of answers a passing track, in a way.

"Q. And right at the tower, there is a track that leads,...