114 S.W.2d 988 | Mo. | 1938
Lead Opinion
This cause, for personal injury, was brought under the Federal Employers' Liability Act. [45 U.S.C.A., Secs. 51-59.] The jury returned a verdict in favor of plaintiff for $40,000. On hearing of motion for new trial, a remittitur of $25,000 *333 was made, judgment for $15,000 entered, motion overruled and defendant appealed.
[1] The cause was filed in Stone County, but the venue was changed to Christian County. We first dispose of a motion to dismiss the appeal. There are several grounds alleged in the motion, but, in effect, they all go to the contention that the bill of exceptions was not filed. The record proper, among other things, shows the trial, the filing and overruling of motion for a new trial, the judgment, appeal, and then recites that thereafter and within the time granted, the bill of exceptions "was duly allowed, signed and sealed and ordered filed in said circuit court of Christian County, Missouri, and the same was duly filed in said court and order made and entered of record showing the filing thereof."
The abstract of the bill of exceptions recites that "now on this 7 day of September, 1936, comes the defendant, by its counsel, and asks that this, its bill of exceptions, be signed, sealed and made a part of the record of said cause. Which is accordingly done on this 7 day of September, 1936. Robert L. Gideon, Trial Judge."
The cause was set for hearing in this court on September 21, 1937. The motion to dismiss the appeal was served on defendant September 15, 1937. An additional abstract, in support of the motion, was served on defendant September 16, 1937, and filed here September 20, 1937, which additional abstract states that "since the printing of respondent's brief another bill of exceptions was found by the clerk a few days ago in his office, which shows the following endorsement on page 260, the last sheet thereof:
"Bill of Exceptions
"Now on this the 30th day of Oct., 1936, comes the defendant by its counsel, and asks that this, its bill of exceptions be signed, sealed and made a part of the record of said cause.
"Which is accordingly done this the 30th day of Oct., 1936.
"Robert L. Gideon, "Trial Judge."
The additional abstract states that "stamped on the back of sheet 260 (of the bill of exceptions) are two indistinct filing stamps by the clerk as follows: Filed Oct. 30, 1936. Elmer Aven, Circuit Clerk." Then the additional abstract says: "Endorsed on the back of sheet 259 is a like stamp filing. On the back of sheet 258 is another like filing date, indistinct, but evidently intended for October 30th, 1936."
The additional abstract further shows that September 7, 1936, was the first day of the September Term of the court; that October 30th was the last day of the term; and that there was norecord entry while court was in session, recess or vacation, showing the filing of the bill of exceptions. *334
Our Rule 11, among other things, provides: "If the respondent desires to make objections . . . that the bill of exceptions was duly signed or filed, or that the appeal was duly taken, such objections and the reasons therefor shall be served in writing on the appellant or his counsel, fifteen days before the day on which the cause is docketed for hearing, or within fifteen days after the abstract is served. Any such objections not so specified shall be deemed waived and will not be considered by the court." As above stated, the cause was set for hearing in this court, September 21, 1937, and it appears that copy of abstract was served on respondent July 30, 1937, and abstract filed here July 31st.
One of respondent's counsel filed an affidavit here stating that "on or about September 15, 1937, respondent's counsel for the first time learned" about the situation relative to the filing of the bill of exceptions. Appellant calls our attention to Rule 11, quoted in part, supra, and to State ex rel. Chester, P. Ste. G. Ry. Co. v. Turner, et al.,
Whatever the ruling should be on the merits of the motion, we *335 express no opinion. There is no claim of fraud or sharp practice which prevented plaintiff from discovering the situation sooner. In the circumstances, that plaintiff did not discover the situation in time to comply with Rule 11, cannot alter the rule. Clearly, under the rule, plaintiff waived the right to complain on the filing of the bill of exceptions, and the motion to dismiss the appeal is overruled.
After some preliminary allegations, plaintiff alleged that one of defendant's railroad lines runs from Little Rock, Arkansas, through Van Buren, Arkansas, Fort Gibson and Claremore, Oklahoma, and on into Coffeyville, Kansas, "which was one of the lines regularly used, assigned and devoted to interstate traffic;" that on and prior to September 2, 1931, plaintiff was in the employ of defendant, and that it was his duty to operate on defendant's railroad a motorcar, attached to a mowing machine, which machine ran on the rails, "and was used in mowing grass and weeds and other vegetation growing along and adjacent" to the tract; that the "mowing machine consisted of a small car with a sickle on either side, . . . which sickles were operated by a small motor stationed upon said mowing machine, and that said mowing machine was hauled and drawn along said railroad track" by the motorcar operated by plaintiff. It is alleged that the governors on the motor of the mowing machine had become defective, and that on September 2, 1931, date of plaintiff's injury, defendant sent two mechanics to repair the mowing machine "which, with the motorcar, was then located at Fort Gibson, Oklahoma."
It is further alleged that about seven A.M., day plaintiff was injured, the mechanics took charge of the moving machine and undertook to repair the same, "and after working on said mowing machine for sometime, took the same out, with plaintiff operating the motorcar, and proceeded to mow weeds and grass along the right of way of the defendant's track near Fort Gibson, and in order to further complete the repair and correct the improper operation of said motor, temporarily stopped said motorcar on the north gin spur of defendant's track at Fort Gibson, and proceeded to test out and complete the repairs thereon; that the defendant's said motor repairman, Bartlett, was then present, in charge of said mowing machine, and while the motor thereon was running, but while the belt which was used to convey power from said motor to the sickles was not running, ordered and directed this plaintiff to place his foot upon and tighten said belt for the purpose of testing out said motor and causing the same to labor so as to aid and assist in the repair thereof, and to determine the nature and extent of the troubles, and the defects then existing in said motor and the governors thereof, and thereupon assured the plaintiff that he could do so with safety; that said belt was then loose and the pulley wheel *336 was idling in the same, so that said belt was not moving; that the chain on the idler of said belt had become and was then detached and loose, which permitted said idler to remain free to slip and move about and liable to become entangled or wound in by said belt and which fact rendered it very dangerous to handle or come in contact with said belt and which fact was known to the defendant, its agents, servants and employees, or could have been known by them in the exercise of ordinary care, but was unknown to the plaintiff; that some one of the defendant's employees had immediately prior thereto loosened or slackened one end of said belt, which fact rendered said belt and the handling thereof dangerous, and which fact was unknown to the plaintiff, but was known to the agents, servants and employees of the defendant, or in the exercise of ordinary care could have been known by them."
Plaintiff further alleged that "acting under the immediate orders, instructions and directions of the said Bartlett, and relying upon his superior knowledge and skill, plaintiff placed his right foot upon said belt which was then stationary, and when he did so and while carrying out the orders, instructions and directions of defendant, said belt was caused to and did lap and loop and suddenly move so as to catch said idler therein, and thereby plaintiff's foot was caught" resulting in the injuries complained of.
It is further alleged that plaintiff's "work as motorcar operator was interstate in character and that he operated said motorcar and mowing machine in the states of Arkansas, Oklahoma and Kansas, and that said mowing machine was used and devoted exclusively to mowing weeds and grass and other vegetation along and adjacent to the track of defendant where its interstate commerce was carried on, and that the work of keeping the grass, weeds and vegetation cut and cleaned from along said railroad tracks, was necessary in the maintenance of said railroad tracks for the prevention of fires in the safe and expeditious handling of interstate freight and merchandise and did expedite and further the interstate work so being carried on by the defendant, and was therefore a necessary part of and incident to and directly connected with the interstate transportation being carried on by the defendant, so that both plaintiff and defendant were at the time of his injuries, as aforesaid, engaged in interstate commerce; and said motorcar had become and was an instrumentality of interstate commerce and had been regularly used and devoted in the interstate work aforesaid, and the repair and maintenance thereof was a necessary work in the proper and efficient maintenance of defendant's track and roadbed for transportation of interstate freight and merchandise."
Plaintiff alleged five separate grounds of negligence, but went to the jury on the charges that his injuries were directly caused *337 by the negligence of defendant, in that Bartlett negligently ordered and directed plaintiff to place his foot on said belt and take up the slack, when Bartlett knew or in the exercise of ordinary care could have known that such was dangerous and likely to result in injury to plaintiff, and that some of defendant's employees had negligently removed and detached the chain from the idler, leaving the idler free to move about and liable to be caught and entangled in the belt and injure plaintiff.
Defendant answered by general denial (except admitting that it was a corporation); and by pleading contributory negligence and assumption of risk.
Error is assigned (1) on the refusal of defendant's demurrer to the evidence at the close of the whole case; (2) on instructions given and refused; (3) on an alleged excessive verdict; and (4) on argument of counsel.
The assignment based on the refusal of the demurrer to the evidence raises three questions, viz.: (1) Was plaintiff, at the time of his injury, engaged in interstate transportation or in work so closely related thereto as to be practically a part of it? (2) Did plaintiff assume the risk? and (3) Is there substantial evidence in the record tending to show that defendant was guilty of negligence as submitted?
Measured by the demurrer to the evidence, defendant admits that the mowing machine in question (including the attached motorcar) was used to transport the laborers of the weed gang from one state to another while in the course of their work; and that the machine was used to mow the right of way of an interstate railroad; and that, at the time it became out of repair, it was being used to mow the right of way of an interstate railroad. The question is: Was the repair of the mowing machine, under the facts, a work in interstate transportation or so closely related thereto as to be practically a part of it?
[2] It is conceded that plaintiff was injured while the mowing machine was on the gin spur at Fort Gibson, and while the repair work was going on. "In the application of the Federal Employers' Liability Act, we, of course, are bound by the decisions of the Supreme Court of the United States." [Drew v. Mo. Pac. Railroad Co.,
The test as to whether or not an employee, when injured, is under the Federal Act is laid down in Shanks v. Delaware, Lackawanna Western Railroad Co. (1916),
The Supreme Court of the United States in ruling the Shanks case said: "It is essential to a right of recovery under the act not only that the carrier be engaged in interstate commerce at the time of the injury, but also that the person suffering the injury be then employed by the carrier in such commerce. . . . The question for decision is, Was Shanks at the time of the injury employed in interstate commerce within the meaning of the Employers' Liability Act? What his employment was on other occasions is immaterial, for . . . the act refers to the service being rendered when the injury was suffered. Having in mind the nature and unusual course of the business to which the act relates and the evident purpose of Congress in adopting the act, we think it speaks of interstate commerce, not in a technical legal sense, but in a practical one better suited to the occasion (see Swift Co. v. United States,
The test laid down in the Shanks case was reaffirmed in Chicago, B. Q. Railroad Co. (1916),
From the test rule announced in the Shanks case, and the rule we are required to follow, the term "interstate commerce" has no such scope as given in many State and Federal decisions, prior to the overruling of the Collins and Szary cases. As appears above, in the excerpt quoted from the Shanks case, the Supreme Court said that the liability act "speaks of interstate commerce, not in a technical sense, but in a practical one better suited to the occasion," and then laid down the test rule above italicized. [3] As we construe the test rule, the instrumentality being repaired, in order for the repair work to be under the act, must itself be one that is directly used in interstate transportation.
In Chicago Northwestern Railroad Co. v. Bolle,
In Southern Pac. Co. v. Industrial Commission of Utah,
In Myers v. Chicago, B. Q. Ry. Co.,
In Pennsylvania Railroad Co. v. Manning (C.C.A. 3rd),
In the Drew case, supra,
In Milburn v. Milwaukee, St. Paul Pac. Railroad Co.,
The judgment should be reversed, and it is so ordered.Ferguson and Hyde, CC., concur.
Addendum
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur, except Hays, J., absent.