*1 undisputed per- is appellants evidence have failed to They subscription their stock contract their have form. side. procured Building Company never the common stock for they Dry They subscribed. never tendered to Goods have stock, Company properly endorsed, for that certificates and demanded exchange the issuance to them of There is debentures therefor. nothing they see, record so can if far as we show had! they them, they steps, or if taken these should still take could hot so, get exactly bargained they what for. This cannot they money. disavow their own contract sue a return their sugges In another supplemental appellants their brief the make They Dry say tion. terms with the that under the of their contract Building Company agreed Company the latter to cause the Goods syndicate managers stock or the to issue them the shares subscribed; Building Company they or the for which Dry really agmt Company, Goods syndicate, was pertained receipt of the stock so far as to the issuance money. appellants, is them of their We do not think this so. The Building selves, in the procure were to the issuance their stock exchange at Company, might keep debentures their it or it .for syndicate but agent, not an pleasure option; own Dry Company arid independently, dealt with the Goods acted Building organizing Com length other stockholders arm’s evidence pany may no corporation. be, there is But however that managers ever withheld Building syndicate have Company or the subscribed, or that for which appellants common stock performed for that reason. has been the contract not nothing in evidence up matter, To sum the whole we find court. overturning judgment the trial would warrant us in legal contention deciding appellants their In we allow to so makes un- along equitable lines. This adjudged action should ably have been questions which necessary go the technical into by appellants’ counsel. briefed Seddon, CC., Lindsay and judgment concur. is affirmed. adopted C., opinion by foregoing Ellison, PER CURIAM: The except Frank judges concur, All court. opinion of the as the J., sitting. Louis, Ap
Joseph St. Association Mech Railroad v. Terminal (2d) 510. W. pellant. S. One, May Division *3 Blodgett L. Howell and R. appellant.
J. E. Charles P. and Hensley, Noell & respondent. Allen Marsalek for *5 damages personal for in- an action LINDSAY, C. This is for employ in the of defendant. plaintiff while juries, suffered the 942 brought
The suit was under the Federal Employers’ Liability Act. At the time of injury plaintiff the was foreman of a switch crew defendant, .of engaged in moving passenger seven coaches propelled by engine, an yards of defendant at Atlantic city Liouis, Street in of St. respective the to their appropriate places on tracks Union Station, city. in said' Certain the cars so moved property were the Illinois Central Railroad Com- pany, and property the remainder Chicago were & Eastern Illinois Railroad Company. purpose set was to coaches & Chicago Company Eastern Illinois on track the others on track 28, Union Station. These there, cars when so assembled parts would regular become trains of respective railroad com- panies running out of Union destinations, Station to their which respectively Chicago, were Illinois, Springfield, Illinois. From yards the Atlantic Street being pushed the train of seven cars was eastward. foreman, The plaintiff, platform as stood on the east, ear advancing at the or end of had He in his train. hand hose,” appliance the “tail an connected with air line and air brakes cars composing train, oper- which be could used to ate speed train, the brakes stop control the it. These question moving designated at the time were on track track 52, toward Union Station. Within Union Station there thirty-two passenger were tracks which were for trains assembled outgoing 52 system movements. Over track maintained signals. signals bridges block were located on over the These bridges. tracks, They operated' referred to as were and con- employee trolled an of defendant from located near tower signals nighttime, given track. various service in the were showing yellow* green light, signal bridge. red A over the green light was used' to clear indicate track. The rules of de- defining signals meaning fendant and use of these were intro- .signal evidence, bridges and will noticed duced hereafter. The lights shown, these were Over track numbered. signal bridges 52 numbered 17 and were located 9. The distance A signalling purposes. a block for them constituted train between Station, 52 Union the train on moving on track toward as was pass signal bridge 17, moving would under located, bridge Passing signal bridge toward Un- toward On northward. curves somewhat the occasion ion Station track bridge 17 green light, showed a over but question at beyond track, in the curve which this short distance on. moving, passed then stood the time there on which of cars. The train and train track, train, engine attached to the collided with the other working injuries for which he sued. plaintiff received and as a result
943 to in referred collided is engine The with which petition engine 96. and evidence as alleged tried, was the case petition on which The amended in- was plaintiff and in commerce engaged was defendant interstate com- by in such jured switchman defendants employed as while part, in whole, in injuries merce, that his resulted and petition agents. set and The negligence employees of defendant’s plaintiff en- doing work in which the was forth the manner meaning maintenance, use, and gaged manner and the place, by operating trains at signals, furnished respec- petition next set forth the of defendant. The under rules time, was at about plaintiff and defendant at the tive acts Kay 17, 1924. two o’clock a. m., first, Negligence two heads. The was failure specified under change light signal on signal to the defendant’s tower man 9 green engine and its train bridge red, 17 to when No. from No. bridges No. 17 signal stopped into and block between moved No signal bridge plaintiff seeing signal 9, whereby, No. on and bridges No. 17 17 and green, proceeded into block between Negligence engine under with No. 9,No. and his train collided specified the second head is as follows: knew, ordinary man the exercise of
“Defendant’s tower engine and train of de- known, could have that there was care plaintiff 52 on standing that the train fendant’s on track and stationary engine on track proceeding and train toward said doing 52, the work and under the rules of and under the method practice long-established and known defendant, and under a custom by plaintiff and at the to and relied both defendant question, duty of defendant’s tower place and it was time 17 signal bridge No. to operate man a lever and cause the on to 52 light blocked said a that track with with red indicate signal bridge 17 signal bridge No. and and train between No. yet negligently throwing failed and tower man omitted defendant’s signal caused which would have in said tower certain lever green negligently aforesaid change red and violated the negligence of and as direct result of the rules, practice, and custom bridge green signal on permitting man in tower defendant’s bridge failing 17 to throw red to be indicated No. proceeded past 17, plaintiff pushed on track No. on train standing signal bridge with a train around a No. and collided bridges No. 17 9.” curve said between injuries plaintiff, petition forth suffered then set is made on here, be described béeause no issue but these need not injuries, appeal character or the amount reference judgment of rendered. general answer denial, was a in- averment that whatever
juries the plaintiff received act, caused man- own ner in which performed charge his own work, in that he had control of speed stopping ques- train and tion, nevertheless train, caused the same collide another by allegation injuries followed whatever received *7 the risks, dangers result risks, of and incidental to the of his open which employment, him, were obvious and to or were so no- as torious to be to obvious and which were him, assumed him. reply general The awas a plaintiff denial. The verdict of $30,000 which $20,000. was reduced remittitur to assigns
The give in error the refusal of court the to defendant’s instruction the nature of a the demurrer to evidence. urged upon grounds This is two will which be considered presentation by order of their is, defendant. The that the first evi- shows injuries plaintiff dence that whatever sustained were caused operation own of act train of violation the rules thoroughly with he which was familiar. injury, twenty-five years the time of his
At was of employed age, and had switch been as foreman for years, about two employed, helper prior that, and as a kind the same of work years. for about two lie testified that as the train he was con- proceeded along 52, ducting light signal bridge track on 17 was said, “which,” proceed he green, clear, “means ahead.” There is light green dispute to the fact that the was at that The no time. proceeded' beyond signal bridge train 17 about the dis- city point engine tance of a block to of collision with the engine standing 96—-which was plain- other track 52. The train — moving speed his train was at a tiff testified that of about fifteen hour, speed was operations; an the usual such miles that bridge 17 the track curved passing northward, after somewhat high and there embankment ten or fifteen that was feet near the dining porters frequently track; that threw refuse out embankment which cars over on this rolled on to the track; rendering along place wet; sloppy and the track there place time smoke at the was at this considerable from Missouri engine. large along Pacific There were a number tracks engine Plaintiff he discovered the with which place. said his train 52, ninety when he was about or one hun- collided was it; headlight standing away engine that the this dred feet time, was downward and he collided thrown could with which car-lengths; or four he had three seen more than not be described, during the movement and when his hands he tail hose he collided', pushed he light the locomotive saw opened hose, up and of the air it air. angle cock down the testimony in Ms circumstances immediate .described the collision as follows: passed bridge looking I on the
“After I was forward No. out began curve, and all anything track and and turn didn’t see headlight emergency I air applied and I and at once seen stop began jump slide, going I it be- so knew wasn’t get I car I crossed over tho collided, fore it so tried to off the gate my. got my trap step door on foot down under the clothing hung on some coach. slipped; parts feet I fell and my myself up pick again, late; but it too collided tried to ’’ already. discovered that this plaintiff said that when he first eighty him track, was on distant from “between the same feet,” and discovered it ninety, a hundred that as soon as he applied air brake. The further shows that at signal bridge and about point fifty sixty 17, south of about feet oceured, collision the defendant one-half block west where the operator tower in which lever maintained placed called block The tower so tower and the stationed. *8 by in this signals bridge were controlled man stationed signals push man change merely the tower tower. To high This up a lever few inches. tower button, and move sides, and a view of ground, had windows on all afforded above the no ob- surroundings, and was evidence there was there standing in and view between this tower the train struction plaintiff’s 52 with which train collided. the block on transferring produced ears Defendant yards yard-master on track Atlantic Street Atlantic tower telephone not to the man tower yards would Street proceeding was to be diverted from track train unless ordinarily eight yards to station took seven or trip collided was train with which The train minutes. yards Atlantic which had left the Street about coaches,
passenger trip, started on and this its before minutes sixteen stopped in block short distance east of had been other train heretofore stated. has been bridge 17 as signal block rules introduced evidence governing rules for trainmen and levermen certain
definitions, and follows: operators as
“ Signal Rules. ‘Block “ ‘Definitions. “ limits, by of which track of defined the use length A ‘Block. signals. by block governed is trains “ signals block operated. A from which place are Station. ‘Block “ Signal. ‘Block signal governing fixed the use A of a block. “ Signal. signal ‘Home Block A fixed at the a block entrance of govern entering using- trains that block. “ System. Block A governed blocks, ‘Manual series of consecutive
by signals operated block manually, upon by information telegraph, telephone or other means communication. “ ‘Signal Indications.
“ signal horizontal; red; ‘Position, color, use, for occasion appear clear; enginemen for will when block is not indication trainmen, stop rules, stop- stop, proceed'; or as used name signal. signal, stop-and-proceed or “ diagonal; yellow; ‘Position, color, appear will when clear; clear; approach is block second block next advance is signal. prepared stop; caution home “ vertical; green; color, appear will when ‘Position, enginemen trainmen, clear; proceed; indication for name block rules, signal. used in clear as “ Levermen-Operators. Levermen, Directors, ‘Train “ appliances, only Levers, operating or be used ‘612. other must charged duty directed those as the rules. “ signals operated' is set the must suf- ‘613. When the route be delay. to avoid ficiently approaching trains in advance “ display so Signals ‘614. restored as to their most re- must be engine of a train as the front end indications as-soon strictive except passed, a train were cleared has followed pusher. is to act “ passing all trains and note They observe whether ‘626. must order; any and in should there be complete indication of they are any train, train, they endangering other must take conditions may protection practicable. of trains as for the such measures “ Trainmen. ‘Engineermen and *9 “ making stopped leverman engines by the or ‘669. Trains in either not move interlocking plant, must through an a movement signal him. from they proper received until have direction “ fol- engines, or a train two lone or more than When two ‘671. signal, interlocking stop engine, stop at lowing lone movement, not otherwise. but changed for each be must “ Staff Block and Telegraph-Telephone ‘Leverman-Operators, Operators. “ report to instructions They will receive ‘736. interlocking oper- pertaining to matters trainmaster passenger telegraph superintendent to movement, and and train ations supervision dis- the immediate matters; be under in all other
947 interlocking higher patcher, employed or classes at of those with the office; telegraph-telephone station or themselves familiarize every move- general train instructions; rules and call' to each other thorough under- repeat all calls insure a ment to made and to ” standing.’ plain- rules. Since The defendant also introduced certain other defendant, and tiff testified that familiar with the rules injuries were caused it is claimed that the evidence shows his disregard or operation own act of the train violation are also set out. rules, these further rules introduced as follows: They are “ A insure an proceed ‘Rule 109. or train order does not through tracks ahead, except the tunnel. The unobstructed virtually yard. Train move- companies are one continuous these irregular. made frequent but often Movements must be ments are with trains under control. “ engineman or foreman and the 105. Both the conductor ‘Rule safety responsible for of the train and the observance of the are provided rules, must take rules, and, under conditions not protection. every precaution for “ protected against any fully known 101. Trains must be ‘Rule passage speed. at normal which interferes with their condition safe “ may interfere with the safe are found ‘When conditions speed protection pro- no has at normal been passage of trains safety. will insure must be taken as vided, such action “ ‘ stormy view, which obstructs the also when foggy In weather obstructed, enginemen and trainmen must be view is otherwise as to must be moved under such control alert, and trains especially clear; ap- track is known to be also stopping within distance insure danger persons crossings so as avoid to and street proach stations ” and vehicles.’ employees of its who testified introduced several The defendant signal light on practice in reference to the rule, to a custom testimony green- that a was to the effect bridge This No. 17. of trains when the movements bridge all of the time
onwas only this lead;” “52 that the time directly down track there to be changed red, would be when light would be Street, and in that case Twenty-first diverting movement by telephone, called No. would be man tower of tower drag going “had a yards, and told that Atlantic Street signal red, thereupon, he would' throw Twenty-first Street,” move- switch; to the effect also and reverse engine engine 96, made with ment movement, and one known to all the regular collided, yards; and that at that Street working in Atlantic employees *10 948
time, the movement made 96 with regularly preceded the track, movement the train that on, was and on the same space and that the of time between that and movement the move- plaintiff’s minutes; ment of train was also, sixteen that the occasion holding engine 96 for on track 52 would be to allow the fast mail pull out, occasion, train to at about two o’clock, and that on this engine 96 1 “probably held” from tower No. the mail let plaintiff’s train On out. the other hand it that practice the custom and that “the bridge on No. 17 over 52 red, kept red, show be proceeding at a time when a train was east- 52, ward on track and in another train was the block between bridges 9; always No. 17 way; and had found it that that this during years the custom been the whole four in which upon there, had worked and that in in- he relied so this it stance; always proceed, go ahead, you that he was told to “when signal, you get stop, signal.” Upon have clear and when a red out, and upon testimony, the definitions and rules set this oral rests question plaintiff’s determination of whether it must said injury solely disregard due negligence, his own and rules, practice. custom and plaintiff testified rules, that he was familiar with these question. in Upon point time force under im consideration, argue
mediate counsel that under familiarity them, especially rules and admitted with rules 101, solely
109, plain and the collision was due to disregard rules, tiff’s own act and that under court should the evidence the have so declared as mat upon argument proceeds premise that under law. ter of duty change was under no the leverman evidence engine 96, reason of fact green to red train standing plain attached, was on track within the block which bridge upon passing the further entered tiff’s train proceed signal appeared bridge although green or premise, that safety solely responsible for his plaintiff was own 17 the entering largely that block. Printed rulés safety of his forming rules and the definitions These themselves. speak for They proscribe together. construed the re them must be part of two duties of classes em and correlated defendant’s spective duty it is to observe and direct the movements whose ployees- ¡those— otherwise, others, levermen and those also by signals or of trains trains, enginemen and' switch control in the immediate who are foremen. bridge green signal appeared It is admitted of that fact question, consideration the occasion there was evidence violation of rules, must be concluded
949 by requires the 612 rules defendant’s or levermen towermen. Rule It operate appliances the levermen to the rules. as directed the “signal indications,” only necessary explanation is to to of refer the green signal printed stating will set forth and rules that appear enginemen when the is clear and an indication for block is signal proceed, appear and trainmen will when the to that red stop signal or clear, rules, block is not and used in the it is a that as “signal stop-and-proceed signal. indications” enter into the These 612, subject-matter rules, with are be construed rule and to operate direct- appliances to effect as that levermen must their so rules; also, 614, signals ed be restored with must rule that as the front display as to most restrictive indications as soon their cleared, passed; has engine, end of the train or which they for duty 626, and with it the must be construed makes rule any indica- trains, to note passing of a leverman to observe all any train, and endangering train, other tions of conditions may practicable. protection be take such for the of trains as measures rules, printed' say, as matter law under the court could not a employee by defendant’s that there was no of those rules violation testimony the oral question, nor so hold under the occasion custom, to rule given by employees, as plaintiff and defendant’s As tes- practice to oral under the circumstances described. demurrer the conflict, purpose timony, there was but for the under testimony This must done plaintiff’s is to be taken true. unnecessary. authority is rule well citation so established that 351, 260 Mo. Co., & v. Coal Coke [Hall 365.] 109 emphasize rule particularly Counsel for other rules regard displacement as modification or seem to signal proceed does under Rule to the effect that consideration. nullify make not ahead, does not an unobstructed track insure ap- green will provides meaningless rule which that trainmen is an indication block clear and which pear when the is appear will red proceed; destroy that the nor the other rule oper- clear; levermen nor, rule that when the block is not of conditions trains, indication passing and the ators must observe 109 is accordingly. Rule train, measures endangering and take statement to trainmen —a nature of caution a rule which is ap- is duty. This existing enjoins upon them conditions —and insure not proceed does language, that a parent its followed through tunnel, except unobstructed track ahead yard, virtually continuous one are the tracks the statement that Having irregular. frequent but often that train movements are movements that statement follows the conditions, there those stated control. under must be made trains mat- refusing as a hold err in We think court did the trial 109, and that rules plaintiff violated law,
ter that conflicting injury. Ms violation was the cause of his There sole testimony pertinent question. The defendant usual speed greater than the moving train was at a speed have in that could operation, character of did. engine than he seen the with which his train collided sooner moving usual But, plaintiff’s at the testimony was that his train track, watch of the speed; proper place keeping ready act, and had discovered the the tail hose in his hand conditions ex- do so under the the other as soon as he could *12 neg- he was isting, immediately and Whether upon doing so acted'. ligent question jury. or not was a for the neg plaintiff was guilty
It
in mind
if
is to be borne
the
negligence would not bar
ligence contributing
injury
his such
negligence con
guilty
recovery,
if
was also
defendant’s leverman
the
injury. Under the terms of
tributing
plaintiff’s
to cause the
negligent
only
the
Liability
it is
when
Employers’
Act
injury and
sole
of his
plaintiff
is the
cause
act of
part
causation, that the
act is
of the
fhe defendant’s
no
plaintiff’s negligence operates
liability. The
free from
defendant
defeat him en
may recover, but
damages he
to diminish
53;
sec.
Liability
45 U. S. C. A.
Act,
tirely.
Employers’
[Federal
42;
233
S.
Illinois
Lindsay,
U.
etc., Railroad Co. v.
Trunk,
Grand
Rail
66;
v.
240
S.
Auchenbach
Skaggs,
U.
Co. v.
Central Railroad
negligence,
plaintiff’s
hypothesis of the
(2)
8
The
way, Fed.
350.]
in
damages, was submitted
consequent diminution of
and
recovery.
authorizing
struction
injuries could be reason
liability
of defendant for
any signal of
show
negligent failure to
predicated upon the
ably
green signal at the time
maintenance of
warning
upon
and
un
is warranted
conclusion
question. The
place in
and
duty the
omission of
this
der the evidence
without
Dry Goods
v.
occurred
would not have
[Ward
collision
Railroad,
Counsel for in of their contention that the evi- injuries plaintiff dence shows were caused that whatever sustained rules, operation his own act of the train violation Allen, have & Railroad v. Toledo, cited St. Louis Western 165; 478; U. S. Randall v. B. & Aerkfetz Co., O. Railroad U. S. v. Humphreys, 145 in those cases U. S. We think the facts materially are so instant case that different facts rulings controlling regarded of the de- those cases cannot termination of this case.
Toledo, Allen, & St. Louis Western Railroad v. was certiorari judgment 292 W. Ross, review the of this in Allen S. court v. 732. The checker, a car and in which at the was his work injury nighttime, he being time of his done moved about yards railway shunted, company. Some cars were made to move a track near very
engaged, unlighted unattended, no these injured. person warning approach, him of their struck opinion States discusses the Supreme Court of the United grounds Railway Company various on which it held the was not question liable. was the to sound the whistle One failure car, ring gave impetus the bell of the question. this, page 171, when the As to the court said at *13 detached, plaintiff or hundred cars were was some three four feet track, lead and the was at the other end with the a yards string ears, injury occurred in railroad of that the the where going ringing sounding on trains there was of bells and of whistles ringing that of coming, and' that situation it was held the simply was engine would have tended to confuse. It bell of the the plaintiff knew also evidence the how the switch held that under the and, no ing place; was at that that there was evidence that he done any departure danger of exposed was to unusual reason respects just generally In mentioned the practice followed. the prior ruling in Aerkfetz of court opinion cites and follows the that opinion proceeds upon Humphreys, supra. theory The also the v. employees no that of the defendant that there was evidence ordinary' cars, saw, or exercise of charge engine and stopped in time to have or slack plaintiff, seen the care could have injury. Certainly, cars, and avoided there speed of the ened the upon that case and the one at bar distinction between is a clear signal. plaintiff In any warning that case the giving question of work, of and' in performance in the his such moving about was cars, operating switching employees the train manner that movements, any way readily and could not follow his could engine. In whistle of the the case readily him the bell or warn upon track; and, fixed ac- proceeding was plaintiff at bar cording favor, proceeding evidence in his in reliance by him; mean- which could be seen and was seen and the ing plaintiff of duties of the and' of the lever- circumstances, man under the subject of rules and of were the practice, in performance custom and of of work. that kind The contention have sus- of defendant the demurrer should been ground negligence tained -the was sole on own injury cause of his is overruled.
It is next insisted that defendant’s demurrer should have been showing ground sustained on the that there is no evidence particular engaged in which was at the time movement injury Upon anwas interstate movement. that our attention Behrens,
is Co. v. called Illinois Central Railroad Welsh, 242 473; v. U. S. U. Erie Railroad Co. S. S. Lehigh Valley Barlow, 303. U. Railroad Co. v. Carr, 260; Chicago, 183; York Railroad 238 U. Central v. S. New Q. Harrington, & what have B. Railroad 241 U. S. From we v. stated, cars appears heretofore without contradiction that it engaged', in the in which some involved movement placed Company to be the Illinois Railroad Central Chicago Rail & Eastern Illinois and the others -on the track reg Station, according to Company thence, road Union at morning, companies, later, ular on the same those schedules those proceed respective destinations in the State cars would to their presumed Illinois. must be that these evidence such that already been cars, yards Street when moved from the Atlantic placed assigned designated for interstate movements respective In the Behrens case Union Station. tracks en switching crew was injured party a fireman and with wholly freight moving loaded gaged several cars part part city New Orleans another intrastate, from one upon completing that movement city. of that same crew points several other gathered up have to other taken with step transportation link to various destinations in their crew it was said that State. In that case in and without the *14 indiscriminately, frequently and intrastate traffic handled interstate directly one turning from to the moving times both at once at time of the collision other; significant thing that at the was but the with moving a car loaded injured was plaintiff, the crew the wholly was held Upon facts freight those it which was intrastate. in commerce. injured engaged not interstate that the fireman was & W. Rail said, quoting Delaware, v. from Pederson L. The court always Is work 146: is: the Company, U. S. “The test road true in the carrier question part the interstate commerce a engaged?” yard In Co. v. Welsh, supra, Erie Railroad a conductor on an in- railway injured terstate alighting was moving while freight a engine for purpose reporting yard the to the master for further orders, having all previous executed orders. It was held that he was employed commerce, although interstate the orders which he would have received had injured, required he not been would have immediately him up to make an interstate train. It was held that the injury at time of his performing he was not directly an act so immediately act, previous connected with part his a to be necessary it or a again incident thereto. said, page 306, The court at referring to the true test of Employers’ Liability “By the Act: terms of the Employers’ Liability Act true test is the nature of being’ the work at injury, done ex- the mere time pectation personally would upon perform be called to a task interstate commerce is bring not sufficient to case within act,” citing Behrens case. Lehigh Valley In supra, Railroad v. party injured was Barlow, switching placing while a member of a crew with loaded coal belonging company upon unloading railroad an trestle. The cars, days before, a, passed some company’s over the line from State, siding outside and had point switch, remained trestle, unloading. before removal to the In that case inter- placed up- state movement of cars had terminated when siding. on the Carr, injured
In New York supra, Central Railroad v. em- freight running points ployee was a brakeman on train between State, train some ears the same but the contained loaded inter- injured freight. attempting state He was the brake while set car, intrastate which had been out of the train and cut backed siding. employed in It held he was interstate com- onto was setting time, for the reason of the brake merce at to which the car was necessary him was order that proceed attached, uncoupled, return to the might, when journey. its Q. injured Harrington, supra, Chicago, & Railroad v. In B. switching crew, yard the time employee member switching belonging engaged in loaded coal cars injury shed storage track to a coal railway company from a Although thus in its locomotives. the coal for use company hauls, employed in interstate for locomotives placed to be used trans relation interstate held was no such direct that there chute, that, taking make the coal as to portation in the the coal to operation part commerce. of interstate Company; Terminal Railroad LaLone v. The recent decision question now under consideration. 835, is Mo. decisive
In plaintiff’s injuries that ease the husband died from while received engaged and others in empty freight were of ears to movement freight Company house of Liouis-San in the St. Francisco St. immediately Louis. in the be of cars movement were to Some freight shipment loaded with for It into other states. was held movement, was a preparatory movement in aid of the interstate necessary movement, closely movement and incident to 'that and so part connected with it as to In bar be a it. the case at the defend through ant, employees, plaintiff others, its engaged yards moving places the cars from Atlantic to their on Street Station, necessary step, incident, preparation tracks Union morning for the movement of those cars on same into another freight State. In were cars. case the cars moved LaLone controlling In re-i passenger cars. In all the instant case spects purpose with the the movement identical in character and it was cases, this case. After to numerous movement reference page said at 840: in both
“Respondent engaged it is common admits that carrier engaged commerce, it intrastate and interstate d'enies that but injured. Obviously, LaLone interstate at the time commerce engaged in when moved respondent was interstate commerce Broad- the Frisco loaded for destinations outside this State from just freight Twenty-third yard. Street Is it not way to its house reasoning cases, above plain, quite as within the empty condition from of these same cars their movement yard Broadway freight house for Twenty-third Street to the freight being immediately thereat with interstate loaded purpose commerce, was a immediately moved in interstate therefrom the> of, necessary to, incident preparatory vn add movemeflut for closely with the movement furthering, connected purpose and so freight a. when with interstate same cars loaded these ’’? part movement of such interstate is under consideration overruled. contention of defendant Instruction assigns giving errór The defendant in that 1, urged is that “it is erroneous as modified It court. respondent, [by] recovery it allowed a violation of the rules by respond made knowingly violation was whereas such rule as violated is Idle referred to rule ent.” question raised defend discussed, and the set out heretofore demurrer raised as that is the same this contention under ant no new point, this authority is under cited No to the evidence. objection overruled. is made. The suggestion tes weigh we should is, point stated only additional bridge signal green whether the question timony upon the *16 17 did mean weight unobstructed track. testimony of the jury.
was for the The allowance of this contention of rejection testimony would involve of the and an acceptance for de- question practice, upon of the custom and fendant also question plaintiff. of the care exercised This contention is also denied. foregoing judgment
It results from the must be affirmed. CC., Seddon and Ellison concur. foregoing opinion by Lindsay,
PER G., adopt- CURIAM: The judges All opinion of the ed court. concur. G. Luft et al., Appellants John S. W.
Charles v. Strobel (2d) 721. One, May 18,
Division