Yarde v. Hines

Decision Date30 January 1922
Docket NumberNo. 14232.,14232.
Citation238 S.W. 151,209 Mo. App. 547
PartiesYARDE v. HINES Director General of Railroads.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Frances Yarde, as administratrix of the estate of Ray C. Yarde, deceased, against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. W. Jamison, of St. Louis, and Cooper, Neel & Wright, of Kansas City, for appellant.

E. O. Jones, of La Plata, and John T. Barker, of Kansas City, for respondent.

BLAND, S.

This is an action brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for the wrongful death of Ray C. Yarde. There was a verdict and judgment in the sum of $4,000, and defendant has appealed.

Defendant makes the point that its demurrer to the evidence should have been sustained. The facts show that deceased was killed by a collision between a locomotive engine and an automobile hand car, both being operated by the defendant, who was at the time in charge and control of the Missouri, Kansas & Texas Railway Company as Director General of Railroads. Deceased left no widow, but a daughter, 23 years of age, who was appointed and sues as administratrix of his estate. The collision occurred between the towns of Arcadia and Witcher in the state of Oklahoma on the 14th day of November, 1018, about 6 o'clock in the morning, and before daylight. Deceased, together with his foreman and other employés, was riding on the hand car with a light attached thereto when suddenly, without warning, a locomotive engine, without lights, and going in an opposite direction on the same track, struck the hand car, killing the deceased.

The evidence shows that the Missouri, Kansas & Texas Railway ran through the states of Missouri, Kansas, Oklahoma, and Texas, and that the branch of the railroad upon which deceased was killed ran from Kansas City, Mo., through the state of Kansas to Oklahoma City, Okl.; that on the right of way of defendant's railroad were situated poles and telegraph lines that ran through the states through which defendant's railroad was operated. While there is no direct evidence as to by whom deceased was employed, the clear inference is that he was employed by the defendant. Deceased was engaged in the work of putting in poles and re-enforcing and bracing old poles of the telegraph line on defendant's right of way. He was employed at a wage of 850 per month, with board and lodging. The men, including deceased, who were doing the work on the telegraph lines were housed in box cars located at Arcadia. On the morning in question they were going to Witcher to get their breakfast, and, after having obtained the same, they intended to resume their work on the telegraph line. They were at the time working on the telegraph line at a point between Arcadia and Witcher. Their working hours were from 8 o'clock in the morning until noon, and from one o'clock to 5 o'clock p. m. It would seem from the admission of counsel for plaintiff that the telegraph line was owned by the Western Union Telegraph Company.

In connection with the point that his demurrer to the evidence should have been sustained, defendant insists that there is no evidence that deceased was working for the Director General of Railroads, that the locomotive engine was being operated by defendant, or that deceased was engaged in interstate commerce at the time of his death. It is further insisted that there is no evidence that defendant either owned or operated the telegraph line or poles that deceased was working on at the time, or that such telegraph line or poles were being used in interstate commerce, and that there is no evidence that deceased was working for any one at the time of his death.

The court judicially knows that the telegraph is necessary for the operation of a railroad, and usually consists of wires strung on poles along the side of the railroad tracks. 23 C. J. 75; State v. Indiana & I. Southern Hy. Co., 133 Ind. 69, 75, 32 N. D. 817, 18 L. R. A. 502. In this case the facts show that the telegraph line that deceased was working on was on defendant's right of way; that it extended through the states of Oklahoma and Kansas. The court judicially knows that at the time that deceased was killed the government had assumed the management and operation of all the railroads of the country. 23 C. J. 119; State v. Public Service Commission (Mo. Sup.) 235 S. W. 131. The evidence shows that the unlighted engine that ran into the hand car was being operated upon the lines of railroad of the Missouri, Kansas & Texas Railway Company. We therefore judicially know that the engine was being operated by the defendant, the Director General of Railroads. It could well be inferred by the jury that no other person would be operating the engine upon this railroad at the time in question except the Director General.

While there is no direct evidence as to whom the deceased was working for, all the testimony in the case except as to the damages sustained by plaintiff was given by one witness on the part of plaintiff, and this witness was a fellow workman of deceased. He testified that he was employed by the Missouri, Kansas & Texas Railway Company; that he reported for work to Mr. Fuel, foreman of the Missouri, Kansas & Texas Railway, and received instructions from him as to what to do; that he reported to work at Arcadia; that Fuel was the foreman of the gang; that deceased was a member of the gang, and worked in accordance with the foreman's directions; that the bunk cars at Arcadia were owned by the Missouri, Kansas & Texas Railway Company. This ought to be enough evidence to make a prima facie case that deceased was employed by the Director General of Railroads in charge of and operating the railroad at the time.

From what we have said it is fair to say that the evidence shows that the deceased was working for the defendant, and that the engine was by defendant negligently run into the hand car upon which deceased was riding, and that deceased was employed by the defendant to repair a telegraph line and poles that were being used by the defendant in the operation of a railroad that was engaged in interstate commerce. It is said in the case of Coal & Coke R. Co. v. Deal, 231 Fed. 604, 607, 145 C. C. A. 490, 493:

"Where one is injured while attempting to erect a telegraph pole to be used for the purpose of supporting wires over which messages are to be sent in directing the operation of trains in order that a company engaged in interstate commerce may safely operate its trains, such person is engaged in interstate commerce within the meaning of the act."

It is insisted that the demurrer to the evidence should have been sustained, for the reason that deceased was not working for the defendant at the time of his injury; that the evidence merely shows that he had left Arcadia at 6 o'clock a. m. for his breakfast, and that he had not reached the place where he was to perform the work that he was engaged to do; that his work hours did not begin until 8 o'clock in the morning. As we have stated, the evidence shows that deceased was engaged by the month, receiving as compensation for his services 550 per month and his board and lodging; that he lived in defendant's bunk cars at Arcadia. It was necessary for the defendant to give him his breakfast before he went to work on the morning of his death, and, under the direction of his foreman, he was proceeding to Witcher for the purpose of obtaining this meal. It was therefore necessary for him to go to Witcher for his breakfast, and his act was not voluntary within the meaning of the law in reference to such a matter. He was on a mission of his employer, and was therefore engaged in and within the scope of his duties as an employé of the defendant at the time he was killed. Williams v. Schaff, 282 Mo. 407, 222 S. W. 412...

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