Myers v. Chicago, Burlington & Quincy Railroad

1922. TERM, OCTOBER Yol Q. Myers B. & Cо. Railroad v. C. day thought is for the sufficient of the morrow, no

“Take the evil thereof.” unto injunction disagree Lord’s I not

While do may say day not of that not the evil to but he did wait, presented. when be difficult of solution opinion. majority from the therefore dissent I BURLINGTON CHICAGO, McKINLEY C. MYERS Appellant, COMPANY, RAILROAD QUINCY JOHN E. MYERS. Banc,

In 1922. December Setting Burned in Laborer: 1. INTERSTATE COMMERCE: Section plain- lawof that Fire-Guard. beld as a matter It cannot be employment en- laborer of a section tiff whose gaged usual was track, engaged repair inter- in oi; in railroad tbe tbe burned, be was if at state time be was .time commerce tbe solely premises rigbt-of-way, on tbe not at work but on tbe railroad fire-guard prevent landowner, setting adjoining to out a of an in bay engines passing spreading to tbe landowner’s tbe from of fire performing although property, in said work other be foreman, company’s and said order tbe obedience tbe orders of liability attempt company given under to save tbe in an every damages person making responsible a state statute destroyed injured may property fire com- whose have been Notwithstanding engines. said stat- locomotive municated its injured ute, was not at work if at said laborer was the time adjoining property upon right-of-way, on tbe tbe but at work prevent spreading engaged solely setting fire-guard to tbe in properties engines might pass of ad- to tbe firе from later commerce, joining proprietors, interstate be was fire-guard although immediately bis was set be and before said track, repairing and their usual tbe associates were extinguished, adjoining property course, fire on tbe after tbe repairing tbe track. was to return to their labor Conflicting -: Evidence. -: -: Where evidence point conflicting tbe whether at the time section laborer on tbe is rigbt-of-way at work tbe railroad or on tb was burned be was fire-guard owner, setting e adjoining of an out land engines spreading passing locomotive of interstate tbe of fire from MISSOURI, SUPREME COURT OP B. & Railroad Co. C. question near-by hay property, stacks and other trains very injury engaged inter- whether he was at the time jur? decide, proper state instruc- commerce for the under tions, and not court to as a of law. for the determine matter (Sec. 9954, S. 3. -: -: -: R. Statute. The statute damages 1919) making corporation responsible a railroad every person destroyed by may injured property whose or fire by engines upon a communicated its railroad locomotive inmse is proper police regulation, protect but it was not enacted to the rail- right-of-way, it, protect upon road’s ad- structure hut to joining properties; possible and the fact that the destruction of hay impose upon adjoining liability stacks of an on farm would company, the which was burned a section at the time he laborer attempting putting fire-guard by out a on such farm, is not sufficient to make his work interstate commerce. The hay burning way stacks would in no interfere with the operation track, of trains on the whether intrastate or interstate. Leaking 4. NEGLIGENCE: Bucket: Oil on Trousers. Positive evi- by bucket, plaintiff dence one witness that the carried on day putting the that he was burned while out a fire- guard adjoining right-of-way, leaking, on farm the a railroad days before; and had leaked some that there was coal oil in bucket, plaintiff’s just prior and he saw coal oil on trousers injury, to his and the circumstantial evidence that flames sudden- ly up plaintiff’s fighting fire, flashed trousers while he was making burning oil, a volume black smoke like the of coal plaintiff's carry jury ques- abundant evidence to case to the on the company, tion whether the railroad whose foreman had handed setting the bucket to him and fire-guard, him directed to use it in out a negligent furnishing leaking bucket. Contributory: -: Minor: Matter of Law. The court cannot say plaintiff as a matter of that law years thirteen or fourteen age injured respects at the time he was was in all to be re- garded passing upon question an adult of his con- tributory negligence, proper and therefore it is to refuse an in- by telling jury entirely struction asked disregard defendant plaintiff the fact that injured. wаs a minor at the time he was Cautionary 6. -: Corporation. Instruction: That Defendant Is cautionary telling jury refusal instruction to decide according case to the instructions, regardless evidence and the parties of the fact corporation that one of the is a and the other individual, is not reversible error. Vol OCTOBER TERM, v. B. C. -:7. Predicated Facts: Included in Other Given Instructions. telling jury It is not error to refuse an instruction if doing, burns were caused the work he was and not negligence defendant, their verdict must be for defend- ant, predicates were, substance, where such embraced in other given instructions both for defendant. Assumption Disputed S. -: Fact. It was not error to refuse telling jury an instruction if “caused the coal drip drop jerked oil to out of the bucket when he out the cobs ordinary bucket” and did not exercise care and such lack injury, recover, of care contributed to his he could not where testimony just jerk was to the effect both that he “would the cobs “just out,” out” that he would lift them out” or them “took jury plaintiff “jerked since the instruction told the the cobs might out of the bucket” and the have inferred from his testi- mony “just that he took them ou^.” given Instructions: 9.-: Reference Others. The instructions together, telling jury must be read and an instruction the that if “negligent, instructions, defendant was as defined in these in directing plaintiff engage working, to in in and the about fire with appliance by forеman,” handed him the is not error when read given pointing in connection with another appliance” instruction out “the containing as a bucket coal oil. Conflicting Age -: -: with Correct Instruction 10. Given: years Plaintiff. but Where thirteen or fourteen trying age at the time he was burned in to the further spread fire-guard, previous of a and not shown to have had much fires, experience fighting give it not an, error to instruction - requiring age, capacity jury for the him to consider his and ex- perience determining ordinary whether he exercised care for safety. giving And the his own since of said instruction was not error, by the refusal of instructions asked defendant which con- regard, they flicted in this in that therewith omitted to refer to capacity experience, age, his was not error. Knowledge -: -: -: Defendant. 11. Evidence that bucket, containing plaintiff by oil and handed coal defend- foreman, putting fire-guard, with directions use it in ant’s out a it was handed to him and had leaked leaked before for some time days, plaintiff’s previous and that coal was oil seen on on just trousers injury, jury finding was sufficient to before his warrant knew, or could have that the foreman known the exercise of care, were that trousers saturated with due coal oil prior injury, leaking his from the authorized the 296 Mo—16 MISSOURI, OF COURT SUPREME B. & Co. Railroad C. jury telling there that for defendant

refusal of an instruction injury, foreman knew before that the no evidence known, plaintiff’s trousers have of care could exercise cpal oil. were saturated telling the Attention. Past Medical An instruction 12. -:-: damages, consideration, assessing -plaintiff’s jury into to take nursing medical which attention “the reasonable value of reasonably injuries certain occasion the future” does are said already nursing permit recovery medical attention not for rendered. $20,000: Plaintiff, Verdict: Incurable Burns. -: Excessive railroad, pounds, though weighing about 150 section laborer on a years age, badly fourteen was so burned time less than one-eighth body leg of his is covered his and foot that about about longer scar-tissue, healthy skin; functions as with large which no long eight inches and two inches wide sore formed ulcerated years part leg, upper and at trial four later this the. imposes depth; heavier ulcer had increased in duties scar-tissue healthy skin, kidneys Bright’s and he has on the disease , burns; nervous, may from have been caused he is con mind, months, bed six in his was confined .his cannot fused years; injuries sleep, four done work for and has no are might though they incurable, experts substantially testified that grafted heal, especially parts. if onto the new skin scarred twenty Held, dollars a verdict for thousand is not so ex c say, all can the facts and the court circumstances essive considered, weigh fairly did that the thе evidence injuries, effect, their both as to character and Ris or that interfering justified in with the amount. would be Lafayette

Appeal Circuit Court.—Eon Samuel Judge.

Davis, Aeeirmed. Lyons Nelson,

E. J. &'Ristine J. G. Trimble for appellant. peremptory

(1) to find The instruction for defend- given, for the reason been that both ant should have company engaged railroad and defendant cause commerce of action, interstate any limitation if was barred contained had, he 243 1922. TERM, OCTOBER Yol & Co. v. C. B. Railroad negligence Employers’ Liability Act; no the Federal injury assumed resulted was shown risk, 'company in inter- (a) railroad The place over, All line at state commerce. trains carrying interstate interstate trains of accident were freight. passengers Act, Commerce 1, Sec. Interstate (b) in inter- U. A. 30. Plaintiff 3 S. S. Comm, Ind. of Cali- Pac. v. state Sou. commerce. Co. Ry. 41 IT. 8; R. S. DiDonato, Cal. P. v. fornia, 174 Rep. Sup. Reap 273 Fed. Manes 88; Ct. v. 516; Hines, y. Railway, 244 Sou. Pac. U. Puckett, 220 S. v. 14;W. Azary, 454; Erie R. v. 40 C. Gloucester S. Co. S. 571; Ry. Ferry 196; 114 S. Coal & Coke v. Penn., Co. v. IT. Ry. C. Collins, 450; 604; 231 Fed. Erie v. 40 S. Deal, Rail- 239 N. Y. 556; v. IT. S. Central Railroad, Shanks 243 Pedro Railroad v. 188; road v. IT. S. San White, 210 S. Ky. Railroad, 50; Fed. Sanders v. C. Davide, 870; 97 162 209. Admr., v. Louisville Railroad Walker’s Padgett, v. 236 172 L. S. A. 517; S. W. 238 Carr, N. Railroad Co. v. IT. 668; IT. Y. Central S. Zachary, 232 248. N. C. IT. As 260; S. Railroad Go.v. S. engaged in com- man a section interstate v. Davide, 870; Railroad 210 Fed. merce. San Pedro 901; v. 192 Fed. Zikos v. Colasurdo, Central Railroad Oregon v. Boston Co., R. & N. 179 Fed. Lombardo 893; employee duty” though 223 An “on Fed. 427. Railroad, engaged in interstate com- the time at is work, Zachary, N. C. 232 IT. S. 248. merce. Railroad Co. duty” “subject when to call.” M. K. & T. He “on Ry. 231 S. United States v. States, 112; v. United U. Ry., D. & R. K. Fed. States v. 471; C. S. 189 United G. (c) injury 197 Fed. 629’ resulted from Railroad, by plain- a risk incident to the work and was assumed White, T. & 177 S. W. 1185. tiff. P. Railroad v. _(d) limi- if barred had, Plaintiff’s action, Employers’ Liability tation contained Federal Liability Emp. A. 469; sec. U. Act. Act. S. (e) Vaught Virginia There Railroad, S. W. MISSOURI, 244 COURT OF SUPREME Myers Q. B. & Railroad Co. C. v. furnishing negligence in of the no evidence leaky if no evidence that

bucket and plaintiff’s with oil because trousers became saturated “jerked” the cobs of the oil. be- thereof. out As He employer employee under the Federal Em- tween ployers’

Liability thing ipsa no such Act there is as res proof negligence. loquitur. be actual .There must Valley Negligence cannot be Midland Ful- inferred. v. gham, N. 132 O’Brien, 181 Fed. C. W. Railroad v. 91; & 593; Dixon, Fed. Northern Pacifia v. 139 Fed. 737; Ry., Railway, Nelson v. N. P. 148 Pac. v. 263 388; Fish Mo. Patton v. 179 U. S. 658. There 106; Railroad, proof negligence selecting the bucket no permit the be submitted, would case to even under the ' (2) Defendant’s refused state law. Instructions C,B, given, (a) E F should have been Instruction D, given been should have the reason that the B tes- age, timony showed to be of sufficient intelli- experience gence and in the work to be treated as an Payne Mo. Railroad, adult. v. 129 Frauenthal 405; v. App. Cavanaugh, Butz 1; 67 Mo. v. Co., '503; Gas 137 Mo. Spillane 214 Mo. Railroad, 530; McGee v. Railroad, (b) given 414. Instruction should have 135 Mo. C been negligence no for the reason there evidence of furnishing the bucket evidеnce that no oil trousers, (c) “leaked” from the bucket to cautionary D was instruction Instruction and should given, (d) Instruction E have been should have been given injury because it told the if his brought doing about which he work and not negligence part plain- defendant, on the because of tiff could not recover. The risk was an assumed one. (e) S. White, T. & P. Railroad 1185. W. De- given refused Instruction should fendant’s F have been just jerked for the reason that testified that he jerking the cobs out of the bucket. ‍‌‌​‌‌​‌​‌‌​​‌‌‌​‌​‌​‌‌‌‌‌​‌​​​​​​​​‌​​​​‌​​‌​​​​‍If his conduct out of the bucket his trousers to cobs caused become oil, coal saturated with it was his own act and not the OCTOBÉE TEEM, Yol y. B. C. leaky negligent furnishing a bucket. Grand a of result of Lindsay, Ey. Eailroad, Trunk Ellis v. 42; 233 U. S. v. (3) Ky. 155 N. W. Eailroad, Fletcher v. 745; 155 given erroneous, and 5 are Instructions 31, Plaintiff’s (a) with defend- 1 is conflict Plaintiff’s Instruction given the con- in that it submits for 1, Instruction ant’s negligence question jury “in of the the sideration commanding plaintiff” engage in directing work- to 1 ing tells Instruction while defendant’s about the fire, negligence in that re- jury was no evidence the there gard. 5, defendant’s Instructions in conflict with It is for the consideration of. in that it submits 12, 9 and 6, 8, capacity. age, experience jury plaintiff’s It the permits pleaded. negligence It confined to the is not plaintiff negligently to directed foreman recovery if the appliance working engage the fire about -with appliance by only “hand- him the foreman. by handed rag. Thеre is no claim foreman” him the ed rag appliance. Instructions a defective the pleadings the evidence. Hufft within the must be Degonia v. 224 Mo. Eailroad, 222 286; Mo. Eailroad, v. per- negligence which would not define the '564. It does imagine jury . recovery, de- but leaves the to mit a negligence, regardless the act for themselves termine proven compe- pleaded such act was of whether pur- within the must be “Instructions tent evidence. Degonia pleadings evidence.” the both of view It age, considera- 224 Mo. 589. submits Eailroad, experience capacity, plaintiff’s jury tion justify such an instruction. to no evidence there permits recovery burned while work- if were It regardless ing father, a command of in obedience to part negligence there was of whether regardless in contact with he came how father and flames, (b) 3 in conflict Instruction Plaintiff’s permits it in that 1, Instruction with defendant’s negligently ordered jury father find that his engage fighting while defendant’s Instruction fire, MISSOURI, OF COURT SUPREME B. & Railroad Co. v. C. neg- jury no evidence that there 1 tells the fighting engage ligently It is con- fire. ordered permits in that Instruction flict defendant’s jury have father knew or could that his known find plaintiff’s while oil, were saturated with' coal trousers jury there no tells Instruction 3 defendant’s the exercise of evidence that the defendant knew known trousers care could have reasonable permits with coal oil. It find saturated leaky have known of the that his father could requiring jury to find that he did instead Negligence know. proved, not inferred.

must be Midland Val- Fulgham, ley Patton v. 91; Railroad, 181 Fed. no that the bucket U. There was evidence was S. 658. purpose reasonably for which it safe for the was plaintiff There no evidence was ordered used. is did use it. to the bucket as it There use is claimed.he “leaked” from the is no that coal oil evidence ignores plaintiff’s upon It all the trousers. evidence purpose fireguard showing the for which a in the case fireguard being was burned. The was burned to delays protect bridges prevent to and and wrecks of adjacent protect property as to of land- trains, well as company. money the in- so to save This owners purpose plain- to that at the moment struction limits the ignores injured. the was instruction fact that tiff This apparent danger spreading was of occasioned the the “help The instruction “suck” whirlwind. a given boys” keep spreading it from after the help.” plaintiff voluntarily “back had started He (c) help, Plaintiff’s instruction not “ordered” permits recovery If for is erroneous. a medical at- 5 nursing “in the and the future.” In connection tention mean from the time in which it is the words used of July years injury six before he became 12, his of 1911, recovery age. for medical could be a attention If there wages during time his father and would entitled Long, recovery. L. Railroad Co. v. to such & N. TERM, OCTOBER Yol B. & Railroad v. C. Co. wages, permits recovery for medical It 435.W. S. nursing the fact that his father’s in face of attention case) negligence negligence (if were there injury, plaintiff’s the father could not the cause negligence. judgment It because own recover living, to earn while the is unable assumes disability no im- total no shows- there is evidence except through ability paired his own failure to use Permitting recovery proper for a cure. effect means to impaired plaintiff’s ability disability only is when total erroneous. Boyd Kelly, Buchholz, Kimbrell Duvall & respondent. O’Donnell

(1) having alleged petition answer having of the the evidence witnesses admitted, present injury parties at the time of the both having who purpose of the work shown, injury very of his time burning property a farmer was to way right defendant from as to relieve so beside liability imposed trial court Section defendant’s', peremptory given instruc- could not have upon ground that at the time in- tion ' in interstate commerce. In Ry. 221 Co., of N. E. N. Y. Matter Plass v. C. & 472, Railway Chojnacky, 163 226'N. Y. 1011. Co. S. 449; W. (2) its contention Defendant abandoned at the there of evidence conclusion the issue to jury question concerning the of submit to the interstate request judge its the trial commerce, and at submitted upon jury theory the that the the cause to the laws of contributory with reference to the State of Missouri negligence (seе 9) defendant’s Instructions con- complete action, stituted a defense to the defend- urge that ant be heard to the case cannot now governed Liability Employers’ by Act, the Federal un- MISSOURI, SUPREME COURT OF B. & v. C. ap- disposed cause must of on

der the rule that the peal upon theory parties the same the assumed at Meyers Drug Bybee, Mc- 354; trial. Co. v. 179 Mo. the Donald v. (a)

Building Mo. 250. Defend- Assn., 175 peremptory of ant’s Instruction A at the close all Employers’ made no reference the the evidence Lia- bility by No other instruction the defend- Act. asked but ant referred said the defendant’s act, instructions Instruction numbered 6 and 9 and its F dem- refused onstrated that it asked the court to submit the case to theory the on the that the the of of State Mis- laws governed liability, souri its and it now cannot have the theory, disposed (b) case of this court on different parties by given by The instructions asked both the appellate by court constitute the one test which the litigants. courts determine theories of Mitchell trial Rys. App. (3) physical 125 Mo. Co., fact ’ employees and his fellow guard burning right way a fire outside the and that purpose fire work was to from de- hay right stroying way and that stacks, was not except guard burned when the fire from the fire escaped casually therefrom, connection with the tes- timony of all the witnesses for both the actually who were defendant, the work actually purpose at the time and who knew whаt was, the work demonstrated that the conclusions or opinions placed of witnesses, the stand the de- purpose burning fendant, to the effect that the a fire gtíard, protecting property addition landowners’ right way, along protect is also to fences, tele- graph poles, bridges and railroad trestles, ties, has no probative reason that the force, uncontradicted parties particu- evidence-of both with reference to this fireguard physical and the lar said facts disclose that only protect hay purpose was to stacks men- ’ thereby tioned in evidence and relieve the defendant liability imposed Payne R. S: 1919. Sec. 249 Vol 1922. TERM, OCTOBER v. C. B. & Railroad Co. y. Railway, Bishop, 136 Mo. Mo. 171 '575; Weltmer v. n 116; Waggoner Rail- Nelson, v. 118 State Mo. v. 126; way, App. 220; Mo. v. Mo. 173; Pollard, 152 State 139 y. Yanghn, 200 State 170 Mo. 377; State v. Hamilton, y. King, Arnold, Mo. State 203 Mo. 122; 560; State v. y. Railway, 589; 206 Mo. Artz 34 McLeod Iowa, 153; Railway, (a) right v. 270. if the of Iowa, Even testimony way burned and there was no as purpose excepting testimony to the of work, purpose to the included railroad officials effect protection property of and instru- landowners yet mentalities of the road commerce, used interstate accept not, the court as matter could such tes- law, timony question true, but should submitted have jury. Railway, to the In the Matter of Plass 221 N. (4) recovery Y. 226 N. Y. 449. In 472, order defeat injured employee ground аn on the that at the time receiving injuries employee engaged such enough merely interstate commerce, is not show company working the railroad for which engaged was at that time in such but one commerce, seeking go such establish defense must further and employee show that himself such was at time en- gaged in interstate Lia- commerce. Robert’s Federal bility 449,.p. p. sec. sec. Carriers, 776, 808; Zavitovsky v. S. M. & P. Co., St. Railroad Wis. (a) pre- contrary And until the is shown it will injuries sumed that action for railroad em- ployee, through negligence employer of his operation railway use or of defendant’s within State, that he he is in interstate and that commerce, seeking remedy under the laws of the State. Liability Roberts’ Carriers, Federal 453; sec. Os- Gray, (b) borne 241 U. S. 16. was hot, receiving injuries at the time sued for in this case, in interstate commerce the mean- within ing Employers’ Liability of the Federal Act. The test employment employee, of such is: theWas at the time n 250 MISSOURI, SUPREME COURT OF

Myers Q. B. & Railroad v. O. Co. receipt by injuries engaged for, him the of of sued directly im- so interstate an act commerce, mediately substanti- connected such commerce as necessary ally part or a incident thereof? form a Clearly the in this not come within case does Liability of sec. Carriers, that test. Robert’s Federal Harrington, p. 241 v. 778; B. & Co. Q. C. Railroad 451, L. 239 U. Co., U. v. R. 177; Delaware, S. Shanks & W. 473; 233 U. S. Illinois R. v. S. 556; Behrens, Central Co. 260; N. Y. v. 238 South- Railroad Co. U. S. Carr, Central (c) Ry. 253 It will not ern Co. Fed. 736. Pitchford, v. say that, in this case was en- do because meaning gaged in of interstate commerce within the Employers’ Liability Act at times as the Federal such working upon he track the defendant the railroad company, engaged in com- railroad interstate he injury; receiving at the time of his merce na-. employee’s very of an work at the time receiv- ture determining ing injury is the test whether governed rights liability the defendant are and the Federal statute or laws. Fed- Roberts’ State p. Liability 454, 782; eral sec. Illinois Cen- Carriers, v. 241 U. 'B. & Cousins, 641; tral S. C. Railroad Co. Harrington, 241 177; Railroad v. U. Shanks Co. S. Co., 556; L. &. S. N. v. W. Railroad 239 U. Delaware, Carr, Y. v. 238 U. S. Erie 260’; Railroad Central Rail- Minneapolis-St. 242 S. L. Welsh, 303; road v. U. Co. 243 Illinois Railroad Co. U. Winters, 353; v. S. Central 473; v. S. Lack. Delaware, Railroad Co. U. Behrens, 439; 238 U. Southern Yurkonis, Railroad S. West. & (d) Ry. 736. 253 Fed. The mere Pitchford, Co. v. employee fact that the act which the is may injuries, the time receives his will eliminate possible expenses some the inconveniences and operation does railroad, of an interstate not show employee time in such at such Railway (e) Fed. Co., 210 commerce. Jackson v. case, in the all ‘under the evidence essen- Where, Yol. OCTOBER TERM; 1922. B. Q. C. bearing question matter on the

tial ployee whether the em- injury, engaged at the time of was, in inter- question in commerce, doubt, state should be sub- propеr mitted to the under instructions as was Liability done in this case. Roberts’ Federal of Car- p. sec. North riers, Zachary, 798; Carolina Railroad v.Co. (5) prosecuted 232 IJ. S. 248. This action is negligence laws under the State Missouri and proven part having been on the of the railroad com- pany assumption codefendant, its there can be no question in of risk the but the case, resolves itself into contributory negligence, danger one of and unless the performing plaintiff the in work, which the receiving injury, glaring at time the his sowas person age, intelligence, capacity of the a then and ex- plaintiff perience of not ‍‌‌​‌‌​‌​‌‌​​‌‌‌​‌​‌​‌‌‌‌‌​‌​​​​​​​​‌​​​​‌​​‌​​​​‍would have undertaken to do recovery. the Bradley the work, cannot be denied a By. (a) Co., 138 v. Mo. 293. Since de- the negligent fendant was not be held to could, negligence have assumed the risk the defendant’s under the of Missouri. v. law Curtis McNair, 173 Mo. (b) governed by

270. As this case was not Federal assumption the rule with law, reference an- risk Pryor in v. Williams, nounced 254 TJ. S. does 43, rule, change apply, (c) the Missouri There negligence furnishing in direct evidence of for the plaintiff’s performing setting use in the work of fireguards, and direct evidence that such bucket leaked plaintiff’s (d) and saturated trousers with coal oil. jury might And there other evidence from which reasonably infer that trousers had become (e) If saturated with coal oil. there is substantial supporting pleaded negligence, evidence acts of a jury. case should submitted Patrum v. Rail- (f) Mo. 259 124. road, The Missouri law with refer- negligence governs furnishing ence to defective tools Pryor, (6) this case. v. Mo. Williams 272 613. This properly instruction for the submits consideration of MISSOURI, COURT OF 232 SUPREME v. C. B. plaintiff’s age, intelligence, capacity and jury the particularly experience. for facts the con- Those Butler, case. of the Jackson this sideration Railways Mo. Co., Moeller 342; United Mo. Considering permanent (7) na- the severe' and 721. injuries by plaintiff, sustained the verdict ture of but, to be on the excessive, cannot be said con- this case ap- trary, for and the claim counsel conservative, is pellant for the motion trial should have been Pew wholly reason unfounded. Meeker for that sustained Light & Power 216 S. Electric W. Co., v. Union injury 12, July On Myers, C. Personal suit. SMALL, plaintiff, his John E. lived father, Browning, County, Missouri. He Linn was fourteen day following. years 23rd of October old on the He working company defendant railroad who under his father was foreman section hand day attempting afternoon, On that crew. spread fireguard of fire from which he of- crew were in burn- and other members adjacent right-of-way, ing defendant’s in a meadow caught severely clothing fire and he was burned. petition in the before suit filed The us October alleged plaintiff by ordered de- 10, 1919, grass company “to burn the fendant railroad and com- adjacеnt right-of-way to said for the bustible substances liability against purpose preventing said of defendant damage accruing by company from reason railroad of corporations resulting property persons of or from by property injury fire or of such communi- destruction engines by directly indirectly locomotive in use cated operated by upon de- said railroad owned said specifications corporation.” Among other fendant of charged: petition negligence the “That defend- said plaintiff ants furnished appliance plaintiff a defective which bucket, with reasonably safe so was not enable safety perform said work with reasonable TERM, OCTOBER Vol. B. v. C. which, containing appliance leaky bucket awas

to himself, which oil, coal highly known as substance inflammable upon plaintiff’s trou- dripped oil from coal said engaged in to defendants’ obedience sers while he was fireguards, not- burning thereafter orders in withstanding said of the exercise defendants knew plaintiff’s said ordinary have known that care could coal said de- oil, trousers were with said so saturated engage directed ordered and fendants fighting so as to been set out had fire which theretofore spread hay prevent to certain stacks of the same adjacent to said of located on the lands a landowner plaintiff, right-of-way,” whereby without fault on his part, seriously etc. burned, Myers made default.

Defendant E. John company put the of railroad answer defendant Alleged petition allegations that de- issue. the towns Carroll- fendants’ extended from railroad city to the ton in the State Missouri and Laclede and that all Iowa, trains, in the Centerville, State through Browning, freight passenger, running Mis- locomo- that defendants’ trains; were interstate souri, ignite sparks combustible mat- tives emitted would adjacent right-of-way, and that it was ter on and to its necessary material for distance of 100 to burn such right-of-way, its from its track within without feet in the operation to facilitate and line, interstate its upon commerce; interstate undue burden destroyed vegetation along was so its track unless such destroy sparks engines property said said would adjoining of thousands of dollars, on lands to the value great upon commerce burden, and thus cast interstate passengers its interstate trains would and the lives endangered, interfered and interstate commerce telegraph bridges, fences and the destruction of its burning injured poles; while such vegetation then there interstate and. injuries more than that his said occurred two- commerce; SUPREME COURT OF MISSOURI, & Q. v. C. B. years filing before this suit, bis canse action was applicable barred tbe Statute there- Limitations pleaded contributory to. negligence The answer further assumрtion aiid of risk. general reply wa§ denial. instituting to Prior the suit us, had before

brought three pe- other and in suits, the first two the alleged injured tition in effect that when he was he was burning right-of-way in off the of defendant to protect property adjoining its and that of from owners injury by in fire, and the third, that was as- sisting burning fireguards right- on the outside of the of-way purpose preventing spread for the of fire adjacent right-of-way from its lands and from ad- jacent right-of-way. lands charge to its There was no negligence furnishing leaky ih the first petition, charge but such was contained in the subse- quent petitions. petitions These were all read evi- dence defendant railroad. plaintiff,

In this case, behalf, own testified substance, as follows: up

hadWe worked on the track until noon that day; there were six seven in the John bunch; E. Myers (father) foreman. going He said he fireguards evening. to burn morning That we had just Browning. worked on (John the track north of He Myers) E. said he had instructions to do so “and had protect company’s adjoining people’s prop- erty, get get and at it at once and it done.” It drya season.' We went to work at one o’clock that af- fireguards burning ternoon hay these field outside fifty about feet from right-of-way fence. We space fifty burned a about feet wide in the meadow. (John Myers) E. said he would have to make it that Jle keep any sparks going wide over. He wanted protеct hay some in the meadow;' was about a yards right-of-way, hundred from the in stacks. We fireguard burning about a hundred feet from TEEM, OCTOBEE Yol. y.

Myers C. B. & Railroad Co. (John Myers) Well, railroad tract. he E. told ns fireguard protect burn to and he wanted a wanted to hay stacks. He had a these bucket of coal oil and some had it. The a cobs cobs wire about three or four long somebody their ends, stuck into feet and would light drag along the cob start out and with it and it the bucket in his with hand and set the fire. The fore- gave (the fire) get us not man instructions to let it possibly help away if we could it. A. E. Austin first got rag bucket set out used the fight and the fire. I to (to keep spreading beyond fire from limits); got'so fighting intended I hot I was to advised fighting, fire set instead of did when I this man Myers me let have cobs and bucket, wire. John E. fifty him to. set the fire out told I about feet from the stop got fence and these to men were it when it wide enough, get away any not to let it further. It was a gallon quite strip bucket. I set After on fire the fore- setting man said, Don’t set he more; said, “Quit “Boys, get away.” out,” let and, don’t it He told me quit setting away, set the and I and set it post; a fence on I followed directions. started back help fight get away. it not to fire; said let He rag, pair overalls, handed me a old which was dry. fought I betwixt wet it; and fire with I tried get away. fighting to let it I when was noticed I I you afire. out this “Q. Now bucket that used in set- ting your had it leaked trousers? fire, A. Well, I dont know.” know Don’t what causеd'me to catch up my fire. flame flashed all at once in face before get iny legs, fight I before it. could I could I burned fingers along (indicating), began my there to scream up holler. “Q. How did the blaze flash as com- up pared to up at once ? A. itWell, how coal oil will flash all come my knew around waist before I it—seemed hitting burning like the hard and wind fast.” It keep screaming me out of it, made excited and I making It fast, a noise. burned blaze of MISSOURI, COURT OF SUPREME & Q. B. O. just puffing. know bow black and Don’t smoke was place. spread long The blaze been on tbe bucket bad tongue dry my my it seemed like face; over all Somebody my My tbrowed me down. throat.. help jumped began They just me. to holler to into father along my pulled off. man came clothes A me and buggy, they My leg left took me home. hips my up burned and sore; foot sole of long my my for time; burned and sore a whole heel was just way. leg wouldn’t heal some I burned, left was people lay davenport, me and said, and seen there on There wasn’t- doctor said, and someone a doctor, Get a got young linseed oil, man some which he and a town, poured good all and he over said he had heard was way right leg about half from My burned, was also me. space a about ankle, my inside, on the knee to but not bad as the hands, other; of both so size pealed leg my up off. But left rolled and skin my hip my ankle to be raw all ovеr from seemed to my hips. My was bone hot, on both back even back my hands were burned, to be sore both there; seemed my from that. It seemed like but have recovered I water, enough to take the drink burn throat —I couldn’t before was out of out of it. It was about six months I my lay they my tied arms to on back, bed. I had flat my sleep. Kept leg open in this so that I tear wouldn’t high pillow my left, about foot over the foot on a a bed. just during day that time, I would doctored a twice laying screaming yelling, was so bad at I there — pain months. The doctor whole six times—suffered sleep; sleep inject my me arm to make would stuff get burn. It hurts so still on account of this I disturbed gopd ex- condition, hurt nervous. When I was.in big, weighed I do about now, more than tra stout and day earning pounds, 142; and now about $1.60 day legmy now, twice a sometimes then. Have dress unbandaged leg his and showed three here times. Witness jury removed trousers it to the from the also down, knee Yol. OCTOBER TERM, 1922. y.

Myers Q. C. B. & Railroad Co. hip. questions following and showed The asked and answers made on cross-examina- tion: cob Yes, Was the “Q. the bucket? A. sir. you just Q. And then would it lift out of the bucket? just jerk jerk A. Yes, it sir; out. You would yes, cob out of the bucket of oil? A. I took out, sir.” plaintiff, substantially John E. testified for got superintendent as follows: That he from the orders “get busy grass Centerville, Iowa, at once and burn plow scalp grass protect company hay, guards.” years or burn done Had that fоr number of protect property hay.- before, to the farmers’ When — injured burning fire- guard Maggert’s which had meadQw, been Frank. dry mowed some weeks before had material dif- burning fireguard ferent etc. kinds, weeds, this supposed spreading the fire from over engine spark in case meadow would throw a over got permission Maggert the fence. We to do this work. Just before saw afire I had I handed rag, help boys, him him told and not let get- hay, rag the fire the to and that there was another up hanging right-of-way probably fence, back the 150 yards, get go help. and I would and and return and hay. burning The fire was then this towards I heard coming holler, him and him and turned seen towards me, legs up climing with the flames all around his and to- body. running meeting wards his I and him, went I ground, clinched him and we went to the got boys time of the other there some we his pants quick as and undersuit off as we could. Witness plaintiff substantially then described the bums of the as plaintiff stated the and that in- himself, juries had never was not able healed, and he to day injury. work more than a a week since his containing As to the oil, coal the witness Supposed gallon be bucket. testified: fetched to a I candy from had water it in a bucket with home; ÍQ 0-1 SUPREME COURT OF MISSOURI, Q.& B. C. rags put they fire; out struck the would wet put cloth to it out. He was the wet 75 to with flames yards first him afire. It from me when I saw fireguards duty crew burn out of the section right-of-way. the right-of-way We mowed be side the hay burned that once each season. Whenever we fore supposed danger along we usu the section superintendent got ally from the road master orders fireguards protect hay. this Think to burn paid we privilege Maggert something for the of burn Mr. sparks ing fireguard land. Sometimes from lo on his light right-of-way on the and start comotives would fire, light beyond the fence and and sometimes start fire. plaintiff regularly worked a section hand in The regular injury. work of his Did a before sec wages. the same man received Ever since tion his injury, burned, since he has kind of gets spells, fainting and when he tormented he doesn’t doing, fainting spells he realize what is has seem to day. a Never had trouble two or three times of that day burned. Cannot remember he was kind before injury; spells his such since have have didn’t dress day. mother and himself twice His his sores do the treating dressing. him now. The doctor He has dis leg, running charges fainting sore now. increasing.- spells day never worked He over a are he was and has done no burned, two a week since work years. mighty proposi four It was a hard for the last agony leg, him he suffers work; for this tion sleep, sinking “capacity” he will be in this cannot and don’t know what he unconscious, is about or kind anything kind. working other who were

Three witnesses plain- time he was burned testified for at the fireguard burning right-of-way outside the tiff to purpose protecting hay timothy the stacks burning was done this and that no meadow, inside thе right-of-way all. OCTOBEE TEEM, 1922.

Vol. B. & C. gallon bucket one to the As for witnesses plaintiff, Wood, H. said it had been C. around there a good carry while used car, water m to grind spring summer. been around there tools; all syrup rusty rusty It old it bucket; was an was in the pants and leaked. It leaked on bottom his and shoes plaintiff injured day they when set the fireguards; when he carried the bucket it leaked from plaintiff injured. They that was bottom; before just it before, it once leaked like it used did when injured; plaintiff days this was a few before, four something like six, five or while it that, grind plaintiff tools. It leaked used ever since be- gan spring plaintiff init, to use before was burned. They had the coal oil and the cobs this bucket the plaintiff injured, plaintiff day used had it in setting injury. fire, out the before his The witness had bucket, used the and it had leaked on shoes his pants plaintiff shortly, before was burned. 'He noticed plaintiff it up The foreman leaked. told to set the bucket put get help a coat and fire out. He noticed the condition at that trousers time and that something upon them; had he leaked noticed that when rag fight took the the fire, his father gave him about ten minutes before was burned. It trousers, was coal oil on about from his knee down. plaintiff caught up just When it fire, flashed at once, all like oil. coal plaintiff,

The other two witnesses for members of they said did not notice crew, leak in the bucket, although they it it saw and handled it; did not leak. Three witnesses defendants, who members of working the sectión and who were crew they when he was. burned, also testified that were burn- ing fireguards hay Maggert of Mr. catching sparks engines. passing from from fire upon right-of-way, That no fire was set inside the. al- though places. purpose run there in would over MISSOURI, COURT OF SUPREME

Myers Q. B. & Railroad Co. v. C. right-of-way, grass on or weeds the burn the not to adjoining fireguard strip on a mead- burn a bnt to including Fogel, testified that witnesses, also These ow. day they the coal oil bucket used and saw day, not leak. and it did that fire and before produced purporting paper to be a Defendant also plaintiff’s signed he by Wood, which stated witness sign- he, but denied effect, not leak, bucket did that the ing paper produced paper. which de- Plaintiff a said Fogel signed he which con- admitted witness fendants’ he leak, but said that the did a statement tained signed it. he It was not see that it when he that did bridge by there a over that defendant also shown right-of-way and meadow, near this sev- on the a creek by bridges maintained defend- the section eral other on Myers Defendant also section foreman. E. ant John people paid out to and town it had farmers that showed previous damages thirteen fires, for caused year payment years for be- $442,890, the smallest greatest ing Also once that $69,156. and the $13,950, right-of-way, but near burned tree outside of, a right-of-way, struck and its branches on the over fell injured passing car and broke the windows passenger. testified for defendant men Other section telegraph bridges, been communicated fires had that right-of-way. posts poles on the from fire fence ob- for defendant men testified railroad Other fireguards right-of-way burning ject and the bridges keep adjoining crops fences, and also the company poles telegraph from the railroad aiid set on burning engines. sparks That the fire might track, de- let stock to the would fences trains of the that all defendant'rail- rail trains. Also through Browning running trains, interstate road running and from into Iowa, into Iowa from Missouri They intrastate local or traffic. also carried Missouri. injuries: C. E. Jenkins testi Dr. As to plaintiff, the .first examined fied TERM, OCTOBER Vol. B. & Railroad v. C. Co. had fall then trial;

time the large ulcerating before the eight leg, inches surface on the left about long occu wide. It and two and one-half inches part upper pied the entire middle third leg. The scar- lower third The foot swollen. thigh. up tissue extended well above the middle of healthy; fairly Above the knee the looked scar-tissue indicating urine not. Also albumen in the below, found Bright’s of that the man disease and inflammation had kidneys. one-eighth body of burned About his part covered that of the skin would scar-tissue; and with perform not the function not function. Scar-tissue does weight upon healthy of the rest of more skin, throws Bright’s upon kidneys. disease the skin and’ might The The have been caused the burns he received. just gave before he witness also examined the testimony ulcer his and stated he found same appeared except to be a little he found last that it fall, rough deeper; around the ulcer scar-tissue healthy; ankle the scar-tissue swollen; the foot and temperature healthy. had of above the knee looked He a pulse pulse 100 and a normal 72. “I ‍‌‌​‌‌​‌​‌‌​​‌‌‌​‌​‌​‌‌‌‌‌​‌​​​​​​​​‌​​​​‌​​‌​​​​‍noticed is I had trouble that he didn’t remember me at all and intelligent temperature getting an answer. Normal physical about the same as 98%. His condition was pulse temperature last fall. would indicate presence system leg. poison A from the burn of the skin cause death. of a third more would permanent I is no cure think there injuries. properly him treat To treat limb hospital properly he in a under care a should be physician in attendance. That trained nurse with a anyway once care limb should be taken dressed long day might as he lives, for an be as time, indefinite twenty- boy expectancy of life for a know. The don’t years. forty years Trained nurse three old is about ought Physican to see cost about a week. would $35 week; cost a$4 about which would week, him twice required. long be couldn’t tell how this would SUPREME COURT OF MISSOURI, & Q. v. C. B. plaintiff’s injuries: evidence toas Five Defendants’ physicians or six testified for defendant, several of plaitiff during just whom examined had before the testimony trial. The of their substance plaintiff’s leg eight long ulcer on inches and one one-half inches wide; the scar tissue where the destroyed skin and would not function embraced w^is body; one-sixteenth to one-twelfth his entire while kidneys, hardly this threw thought extra load on his they Bright’s it sufficient to cause disease itself; thought proper did not examine his urine; treat- injuries might substantially ment his from the burns grafting, healed, but one said, not without skin they he could not do; found him nervous confused in spells mind, and told one them he had and was physician^ sometimes unconscious. Three of said tes- epileptic spasms tified injury; had before his department who one, testified he the head of Hospital the State for the Insane at Kankakee, Illinois; formerly family physician that he was the and assisted plaintiff, plaintiff at the birth of epilepsy, and that had grand petit infancy, both and from mal, for which he plaintiff eight often years treated until he was or nine (Dr. Tripper) away old, when he moved from Missouri. physicians epilepsy These said that is incurable and progressive, aggravated and was not caused nor plaintiff’s and burns, that and nervous confused con- spells dition of mind and unconscious since burned opinion, owing previous in their were, epilepsy, to his and not to the burns. Myers plaintiff’s

John E. and his the wife, father mother, and in testified injury that rebuttal before this plaintiff any spasms spells, fainting never had or and no doctor ever told them them intimated to that he epilepsy. had In surrebuttal people four or some five plaintiff’s parents testified that plaintiff’s the told them before subject injury spells that he was ever since great was a child and awas They care to them. did Yol. OCTOBER TERM, 26B

Myers B. & Co. C. Railroad epilepsy, spells say just but of some kind, fits spells. help that burn seemed to and Among gave the fol- instructions, the court other lowing plaintiff: for you jury

“1. The if court instructs that be- proven lieve and find from all the facts and circumstances negligent, in this ease that the foreman was and careless directing as in in instructions, defined these and com- working manding plaintiff, engage in in did, if he appliance and about the fire with handed him you if the evidence foreman, and find and believe from plaintiff in care for the exercise of reasonable taking safety obeying his own into command, said position, age experience consideration his ca- you pacity given, if at the time said command was plaintiff further find and believe the evidence that working any, while if command, obedience said injured, your as aforesaid, then was burned ver- plaintiff. dict should be jury The court instructs the acts,

“2. knowledge E. and information of John were the knowledge acts, and information defendant rail- company. road you

“3. The if court instructs be- day lieve and on the 12th find from the evidence that July, employ de- Chicago, Quincy Burlington & Railroad Com- fendant pany, Myers, E. defendant, that the John on said employ Chicago, defendant, date was of said Bur- lington Quincy Company, Railroad its foreman, charge workmen men- fellow negligently tioned in the that defendants fur- evidence; plaintiff nished bucket mentioned in the evi- dence the time bucket and that before and at said» leaky so if it bucket was the said furnished, was, reasonably purpose was not in a condition for the safe plaintiff, if was; for it which was furnished said contained coal said time and that oil at said SUPREME COURT OF MISSOURI,

Myers v. C. B. & Railroad Co. -leaking oil was from said that at and be- bucket; coal Burlington Chicago, fore said time said defendant, Company, acting Quincy through Railroad foreman, its Myers, by ordinary John E. the exercise of care, could leaky have known of the said condition of the bucket, said leaking, if it was and that said not reason- bucket was purpose ably safe for for which it used, the, you reasonably pur- if pose; find that it safe for said plaintiff in

that-the obedience to the orders you plaintiff said if foreman, find that ordered, so plaintiff acting while and said foreman were within scope employment, engaged setting of their in out the plaintiff fire mentioned in the evidence, and that while engaged, exercising sowas and while such care for his safety age, intelligence, boy own as a of his then ex- perience capacity ordinarily would have exercised under the same or similar coal oil circumstances, leaked upon plaintiff’s plain- from said bucket trousers and that thereby tiff’s said trousers became saturated with said Myers acting coal oil;'that said John E. while within scope employment performing of his the duties might ordinary thereof the exercise of care have known that said trousers were.so saturated they with said coal if oil, were; that thereafter the said acting scope John E. while within the of his said employment negligently foreman ordered and di- plaintiff engage fighting rected the the fire men- purpose preventing tioned the evidence for the said spreading hay fire to the mentioned the evi- adjoining right-of-way; dence on farma said railroad only purpose plaintiff that the of the work in engaged injury fighting actual time of his fire, prevent injury property if he was, was to on farm adjoining right-of-way; land said railroad that in obe- any, dience to said order if direction, fighting purpose said fire for aforesaid, and that while- was so and while exer- cising such care safety own as would be ordi- TEEM, 1922. Yol. C 1TOBEE Myers B. & Co. Q. v. C. Railroad age, intelligence, boy narily of bis then exercised experience set on fire capacity bis tronsers they were saturated, oil with wbicb of tbe coal reason coming they contact with tbe fire wbicb were, if plaintiff fighting, engaged and that was, if be your injured, thereby burned and then plaintiff. for tbe verdict must be you jury if instructs tbe find

“5. Tbe court damages plaintiff you assess such will bis for tbe reasonably you will from tbe evidence believe sum as any, injuries, compensate if received as a tbe him for by him on tbe 12th burns suffered direct result day tbe arriving July, at tbe amount of tbe you consideration the' nature take should into verdict any, pain injuries, plaintiff’s if also all and extent of you suffering, physical wbicb be- mental, both suf- tbe has tbe evidence and find from lieve reasonably as direct re- to suffer certain fered or inability, injuries bis if future; also, in tbe sult of said any, for tbe rea- future; also, in tbe earn a livelihood nursing wbicb of tbe medical attention and sonable value injuries reasonably to occasion certain are said any, in all the sum however, exceed, if not to future, thousand dollars.” two hundred evidence re- demurrer tbe

Tbe court refused a quested by the close of railroad at defendant a,t tbe evidence. close all tbe also evidence, gave for defendant, instructions fifteen Tbe court opinion. in be referred wbicb will five, and refused plaintiff $20,000, verdict for returned a Tbe being railroad defendant trial, refused new after appealed to this court. plaintiff, law, matter of as a

I. the Was burned, con commerce when in interstate evidence, by аppellant? not. think tended We work, in the tends show: all witnesses COURT OF MISSOURI, SUPREME C. B. fireguard solely That burned Interstate sparks engines from defendant’s Commerce. communicating1 adioining fire to the meadow thereby spreading Maggert, hay to the stacks and adjacent proprietor. very plain That at the time of the setting injury stopped, of the fire tiff’s had been and engaged put to and in all others ordered were and ting spreading away out the fire which from the plain right-of-way hay stacks, and towards the and that wholly engaged preventing hay in then tiff was the said preventing anything in destruction, and not stacks from right-of-way saving injury on and in defendant liability damages railroad from under Section 9954, 1919, Revised Statutes follows: corporation owning 9954.—Each “Sec. railroad or operating responsible in a railroad State shall be this in damages every person corporation prop- to whose injured erty destroyed may by or fire communicated by directly indirectly upon engines or locomotive in use operated by corpo- or owned railroad railroad such corporation ration, and each such shall railroad have an property upon in insurable interest the route operated by may procure it, railroad owned or in- protection in its surance thereon own behalf for its against damages. [R. such S. sec. 3151.]” question by

veryA similar was decided the Court Appeals Ry. in New York Matter of Plass v. Co. required 226 N. Y. 449. The New York statute all rail- companies road to cause “all Canadian thistles, white yellow grow- and all other noxious daisies weeds ing occupied by lands owned it, be cut down every year.” in twice each and Plass was a track engaged grass mowing upon laborer, and while in right way poisoned by railway some noxious weed. The the railroad officials of testified that purpose prevent nature and of the work was “to fire to bridges spreading adjacent prop- trestles erty.” The court said: not the “Whether weeds on Yol. OCTOBER TERM, 1922. B. & Railroad C. Co. right-of-way solely comply cut with rail- prevent adjoining property

road law and fire to or to protect bridges question and trestles was a of fact,” jury. for the in The court ruled if that, case Plass cutting grass simply comply weeds the state he was not statute, interstate com- injured merce. So this case if when solely engaged preventing spreading fire to the ad- joining proprietor’s hay, not then he was question properly interstate This commerce. sub- jury by mitted to the instruction numbered 3. upheld validity supra, of our has been statute, by Railway, this court Mathews v. 121 Mo. 298, and Supreme other cases and the United States Court Railway proper police in regulation, Mathews, U. S. 1, as sparks the destruction fire from property adjoining locomotives of the of others the .of right-of-way. railroad’s In words, other the statute was passed protect not right-of-way to the railroad’s upon protect adjoining properties. structure but it, proving plaintiff very The burden of at the injury engaged time of his in was interstate commerce upon (Osborne Gray, Sup. was the defendants v. 36 Ct. Rep. Liability, 466), 1 486; on Fed. secs. 449 Roberts conflicting regard, and where the evidence is in it pass upon. is a matter the The most that owing can be said in this to the case, admissions in petitions in the former is that the evi- suits, conflicting dence to whether was when was injured solely engaged saving he was in the farmer’s hay. prior pleadings But such are not conclusive evi- probative jury. force thereof dence, was for A other authorities: Delaware In Railroad v. few injured pre Yurkonis, 238 miner 439, U. S. was while paring transported to mine coal which was to one state to and it was held he was another, not en gaged injured. in interstate commerce when So an. em ployee shop engines in a where machine used in state MISSOURI,

268 SUPREME COURT OF B. & Railroad Co. v. C. engaged repaired, are is not commerce interstate repairing machinery- when in interstate commerce Sup. Rep. shop. 36 Ct. Railroad, v. [Shanks in such engine shop repairing in such an used 188.] Or when [Railroad interstate commerce. in both state and Rep. Sup. In 170.] Illinois Central Railroad Winters, 37 Ct. Burlington Chicago, 473, 233 U. S. Behrens, v . Sup. Harrington, Rep. Quincy Ct., 517, Railroad employee is in held that it was 518, when pertaining the rail commerce, to both classes of work company is liable under Federal Statute for road injury particular service which he unless the injury part employed time of the inter completion though upon of such commerce, ‍‌‌​‌‌​‌​‌‌​​‌‌‌​‌​‌​‌‌‌‌‌​‌​​​​​​​​‌​​​​‌​​‌​​​​‍state even engage employee work work the part interstate commerce. So the fact this in interstate commerce case that upon injury working morning before his expected man to return to such track as a section burning fireguard, does not after said make the work fireguard burning work service. said interstate In Carr, 260, Railroad v. U. S. l. York Central New c. during “Owing the fact that it is said: employees rapidly pass day same often and railroad employment from one class another, courts are questions constantly upon to decide those close called the line where difficult to define which divides the is state from commerce.” “The true test interstate the nature of the done at the time of the work injury.” 242 l. c. [Railroad 306.] U. S. Welsh, injured

In this case if had been while set- grass right-of-way prevent ting fire to on the fires consuming bridges from or or trestles fences telegraph might posts be of the railroad it said well engaged he was in commerce, interstate same as if engaged repairing he had been in track, in which by many by case it is well cited authorities established that, appellant he the learned counsel for would have 269 TERM, 1922. OCTOBER Yol. y. C. B. & Railroad Co. part necessary in work was of a been injured, when en- if, Bnt commerce. was interstate fireguard right- simply burning gaged in outside the a adjoining farm- of-way the destruction of the liability hay from our defendant under and save er’s tending there evidence to show and the was statute, as in inter- fact to he was not be, found injured, when and the Federal statute commerce state the case. is in not hay fact that destruction of the farmer’s

The imposed liability company on the a railroad which the prevent, endeavoring of itself stren appellant’s argued by uously learned counsel suffi as commerce, because, interstate if to make his work cient expense great prevented, burden and would a be imposed upon interstate commerce which the defend engaged, being engaged as well ant railroad argument every If intrastate commerce. this sound employee company railroad service of intended damages police regu it under to save harmless State, torts common would be law, lations engaged in commerce if the railroad was both interstate commerce. and- interstate This cannot true. state done work interstate connection [Shanks not be remote. сommerce must too v. Railroad, Sup. Rep. 188.] We have examined the cases Ct. they by appellant, and are all eases cited where the employee injury actually engaged time at the practical part service that some interstate just the cases mentioned as, instance, commerce, upon working track men the railroad section itself. The appellant’s main case relied learned counsel is v. Ind. Comm. Southern Co. 174 Cal. California, Pacific approved Ry. Sup. R. Di Co. Donato, P. Rep. gate held that a man Ct. In case was using employ of tracks for railroad its both state point at a where the and interstate commerce tracks public killed street, crossed a who was an intrastate COURT MISSOURI, SUPREME OF ' y. Myers B. Q. C. & train when started to back across track a away horse and so that he wdgon could was gate, lower commerce, interstate because his work was to between prevent pass- collisions vehicles and all trains so over the as to ing crossing, traffic blocking at the crossing, which would have delayed trains at other In points interstate including other words, trains. that he was then keeping tracks “the clear and for crossing unimpeded the passage according to schedule of interstate passengers and freight carried the railroad. by” In case before burning us stacks hay endeavoring pre- vent when would no injured, way interfere, directly operation with the indirectly, upon trains the track defendant, either state or interstate trains. We must this point against rule the appellant. s

II. Appellant also contend that there no evi dence of negligence furnishing leaking bucket, and no evidence that oil on leaked plaintiff’s trousers. the. If the positive evidence plaintiff’s Wood, witness

the bucket leak did that day and had days before leaked some and that he SufficRn^Ev^aence. plaintiff’s saw coal oil on just trousers the circumstantial injury, evidence prior flashed up- the flames suddenly trousers, of black smoke like the making a volume burning coal for the to be credited —which was oil, jury —there jury abundant evidence to to the go as negligence in furnishing defendant leaky which caused injury.

III. toAs refused defendant’s instructions: Instruction (a) B refused properly because it told the disregard the -fact that entirely plain tiff was than minor, twenty-one less when years old, injured. He then about thirteen or Minor Plaintiff. old and years cannot say fourteen we all respects of law he was be regarded a matter TERM, 1922. Vol. OCTOBER B. & Railroad Co. C. negligence. contributory passing as an adult Ms on Rys. [Jackson v. Butler, 249 Mo. 342; Moeller United 242 721.] Mo. Co., (b)Instruction jury no told there was the evi C negligently plaintiff

dence that defendant furnished point leaky just been bucket. This has dis Leaky Bucket. posed against appellant. of (c)Instruction simply cautionary D was instruc jury tion to the the effect that the determine case should according it to the instructions which was Corporation. duty obey regard evidence, their parties corporation the fact that one was a less of prejudice an individual without towards and one giving sympathy towards the other. of such one or perhaps not usual, would have instruction, was but neither its refusal re error, been reversible Mo. l. [Stauffer Railroad, 335.] 243 c. versible error. plaintiff’s (d)Instruction jury if E told the that doing, By the work he and not were caused burns negligence jury defendant, because of of should for of this find defendant. The refusal instruction error,

not because was, reversible embraced within other in Predicated. Facts: substance, Included given for defendant. Defend structions Otlier Instructions. given jury 5 told Instruction ant’s by caught fire reason com trousers if that ing plaintiff fighting, the fire in contact with plaintiff on his could by trousers, coal oil not reason given instruction numbered Defendant’s not recover. jury, they required could find a verdict for before by plaintiff, the exer knew, find that defendant ordinary known, have that the bucket could care cise leaking, in containing time have se coal oil plaintiff’s injury occurred. before another bucket cured put given numbered 11 bur instruction Defendant’s negligence proving of defendant den that, it furnishing leaky direсt bucket and any negligence on plaitiff’s injury without cause SUPREME COURT OF MISSOURI, Myers v. B. & Q. C.

part contributing thereto. Instruction numbered 12 given jury plaintiff, for defendant told the en- gaging in work as a section hand defendant, as- ordinary danger sumed all the employ- risk and of his only ment, so far as known him, but so far as could have been known to him the exercise of ordi- nary care.

(e) jury Instruction F told the if drip drop “caused the coal oil to out of the bucket jerked when he out cobs the bucket,’(cid:127)’ and he did ordinary not exercise care and such lack of care con injury, plaintiff tributed to his could not recover. This plaintiff jerked tells the _ cobs ou^ firmly the bucket. Plaintiff did not Dispnted°Fact. testify jerked he the cobs out of the.bucket, question in “just but answer to whether he would just jerk lift them out,” said, “Yes, sir; it out,” and question in answer to the further whether he “would just jerk yes, the cobs out” “I said, took it out, sir.” evidently thing “jerk by Plaintiff meant the same by might out” jury as it out.” At “took least, have testimony. jus so inferred from his So that it was not plaintiff tifiable in an assume instruction that “jerked” the out of the Instruction by cobs bucket, was done de might fendant’s refused F and thus have splash caused the coal oil to on his trousers. Said in properly struction refused.

IV. given As error in instructions jury: (a) jury Plaintiff’s Instruction 1 told the that if they believed from the evidence that the foreman was negligent “as directing defined these instructions” in plaintiff engage working in and about the fire with appliance plain him handed foreman, and that

tiff himself exercised reasonáble care, considering age experience otRe^instructions. plaintiff injured working while plaintiff in obedience to then command, such could re- TERM, Vol. OOTOBER v. C.B. & RailroadCo. appliance evidently cover. The here referred to is the containing oil, when read in connection with plaintiff's Instruction 3. The instructions must be read together, especially says "neg- so as said Instruction 1 ligent instructions," ""as defined in these and when so objection given read we find no to said Instruction 1 plaintiff. If the bucket furnished the foreman was leaky condition, and had been in a quired as defined and re- plaintiff's 3, to be found in instruction numbered negligence part then it was on the of the foreman to engage command in work therewith in and fire, about said as submitted in said Instruction 1. (b) Plaintiff's said Instruction 1 was not erroneous requiring jury plaintiff's age, to consider Ca pacity experience, but thirteen or four years teen old and not shown to have had Age of Plaintiff. Capacity any, previous experience fight much, if ing [Jackson Butler, fires. 249 Mo. Rys. 342; Co., 721.] Moeller v. United 242 Mo.

(c) plaintiff's Nor is instruction numbered 3 er given roneous because it conflicts with defendant's in struction numbered in that the latter tells the negligently "there was no evidence that defendant or position reasonably dered to take a safe nothing in front of the fire." There is Conflicting. plaintiff's neg'- Instruction 3 as to defendant's ligently ordering plaintiff position to take ~a not rea sonably fire, safe in front of the as an isolated fact of negligence. We see no conflict between the two instruc tions. (d) given plain Said instruction numbered 3 required jury

tiff was not erroneous because it plaintiff's age, capacity experience, consider already as If, therefore, determined. defendant's instruc 5, 6, 8, tions numbered 9 and 12 conflicted with said 3, regard, by Instruction in this omit Conflict on ting plaintiff's age, capacity to refer to Age, Matter of etc. experience, they erroneous, plaintiff's 3,. and not said instruction numbered and de- 296 Mo.-13. n MISSOURI, OF COURT SUPREME B. Q. & v. C. complain reversible of such conflict as fendant cannot error. plaintiff’s thing true, Instruction if said

The same which told instruction 2, conflicts with defendant’s e or knew, foreman no evidenc that there plaintiff’s that could have known the exercise of care, oil before saturated with coal Uousers were injury. there was evi have seen, ^he weAs ^Foreman. day and for that the bucket leaked dence coal before and that the Wood saw time some witness injury. just plaintiff’s Such trousers before oil his oil finding jury in warrant the' evidence was sufficient to foreman, by the exercise have known knew or could the of due plaintiff’s with trousers were saturated care, that, prior injury. leaking his If coal oil from the plaintiff’s injury to the at and the bucket leaked before knowledge, actual or foreman’s is 'constructive/defendant might plaintiff’s knowing charged saturate with the oil burned. aiid cause him to be trousers (f) objections num instruction bered part mistake on the 5 are not well It is founded. a. reading appellant’s counsel, of the learned as a to contend that said show, will

instruction permits recovery for medical instruction Attention nursing July 12, or attention or except age, time before no- that there was trial, future after evidence except through inability earn A livelihood, to work or his proper to effect cure. means own failure use. his without, err or. is Said Instruction cannot As verdict: ‍‌‌​‌‌​‌​‌‌​​‌‌‌​‌​‌​‌‌‌‌‌​‌​​​​​​​​‌​​​​‌​​‌​​​​‍We VI. amount say all the and circum it is so excessive that facts fairly weigh jury did not stances considered, plaintiff’s in- to the effect of evidence as character juriesand compensation the amount to. Excessive Verdict, instructions the court. the-evidence and under interfering justified in amount feel doWe verdict. OCTOBER, Vol. TERM, 1922.

McConnell v. Deal. Judgment affirmed. Ragland, Brown, G., concurs; G., absent.

PER CURIAM: —The foregoing opinion by Small, C., is adopted tbe opinion All of the court. judges concur.

C. T. McCONNELL, Appellant, H. DEAL JULIUS

et al. Banc,

In December 1922. EQUITY: Necessity: Sale of Entailed Lands: Isolation. A court equity conveyed grantee cannot order the sale of lands to a . body, proceeds trustee, the heirs of her and the invested paid during life, interest to be to the life tenant her and the sum originally paid bodily for which it was sold to be to her heirs at death, ground sold, land, her on the sole that the unless will be- isolated, provide come since the Constitution and statutes for the private way necessity connecting establishment of a with a public road, necessity and therefore the exist. to sell does not And judgment contingent ordering remainder, the sale of such void, may collaterally attacked. Held, by GRAVES, J., dissenting, equity juris- that a court has contingent diction to order the sale of a remainder to save preserve it from destruction and to for the life tenant and it remaindermen; jurisdiction, and since the court had such necessity recited in its decree that the did exist and that it parties was to the interest of all concerned that the land be proceeds placed trustee, sold and the in the hands of a to be benefit, reinvested him or held for their use and it will not proceeding necessity be held in a collateral that no absolute [Distinguishing Crouse, Heady to sell was shown exist. 1Ó0.] Mo. Contrary Upon 2. -: Bodily Jurisdiction: Decree to Settlement only having Heirs: Collateral Attack. Jurisdiction consists not parties court, power particular judgment but to render the particular equity in the A case. court of cannot overturn a bodily solemn and lawful settlement of an estate made in favor of heirs, conveyed born and unborn. Where owner of land daughter body,” reserving her and “the of her heirs a life es-

Case Details

Case Name: Myers v. Chicago, Burlington & Quincy Railroad

Court Name: Supreme Court of Missouri

Date Published: Dec 20, 1922

Citation: 246 S.W. 257

Court Abbreviation: Mo.