262 Mo. 701 | Mo. | 1914
This is a suit to recover damages for personal injuries received by plaintiff while in the employ of the defendant company. Trial was had in the circuit court of the city of St. Louis, and at the close of plaintiff’s evidence the court sustained defendant’s demurrer to the evidence and permitted the plaintiff to take a nonsuit with leave to move to set the same aside. Thereafter, and within proper time, plaintiff filed a motion to set aside the nonsuit and to grant him a new trial in the cause, which motion was by the court overruled. Several days thereafter, but during the same term of court at which plaintiff’s motion for a new trial was overruled, the court, by order of record, permitted plaintiff to amend his petition by interlineation by changing the prayer for damages from $10,000 to $4500, and thereafter per-, mitted plaintiff to take an appeal to the St. Louis Court of Appeals. After the case reached the St. Louis Court of Appeals, that court, upon respondent’s motion, transferred the cause to the Supreme Court on the ground that the amount in controversy, at the time judgment was rendered in favor of defendant, was' beyond the jurisdiction of the Court of Appeals:
Appellant makes tbe following contentions: First, that tbe St. Louis Court of Appeals erroneously transferred tbis case to tbe Supreme Court; second, that at tbe time of bis injury, appellant was engaged in tbe work of operating respondent’s railroad,, as was bis co-servant, Krietemeyer, witbin tbe language and intent of section 5434, Revised Statutes 1909, and that therefore tbe trial court erred in overruling bis motion to set aside tbe nonsuit and for new trial.
When a money judgment is rendered tbe amount of tbe judgment controls, if tbe appeal is taken by tbe judgment debtor, and tbe difference between tbe
In the case of Schwyhart v. Barrett, supra, where a money judgment was rendered and the appeal was taken by the judgment debtor, it was held that “the amount in dispute is to be determined by the amount due at'the date of the judgment from which the appeal is taken.” Applying this rule to the present ease, the amount due, or claimed to be due, at the date of the judgment from which the appeal was taken, was, as then shown by the petition, $10,000, and therefore sufficient to bring the case within the jurisdiction of this court.
In determining whether plaintiff’s work was within the protection of the above statute, little aid is received from a review of the decisions of the courts of other States. This is due in a great measure no doubt to differences existing in the respective statutes. One line of authorities holds that the work must be such as carries with it the peculiar hazard of railroad operation, incident to the movement of trains. Another line of authorities holds to a more liberal interpreta
That such limited construction is not necessary in order to allow the statute to clear the Federal Constitutional barriers was clearly settled by the Supreme Court of the United States in the case of Louisville & Nashville Railroad Company v. Melton, 218 U. S. 36.
A sufficiently comprehensive review and discussion of the Employer’s Liability Statutes and decisions of other States, together with a discussion of the proper construction to be placed upon the Missouri statute will be found in the case of Callahan v. Merchants’ Bridge Terminal Railroad Company, 170 Mo. 473, and therefore further discussion of the same would serve no useful purpose in the present case. In that case the Court in Banc in construing the Missouri statute held that a member of a section gang stationed underneath a railroad' bridge to warn passers-by of the danger from, falling ties that were being removed and discarded by the section men at work in repairing the bridge, was ‘ ‘ engaged in the work of operating such railroad” within the meaning of the Missouri statute, and that the railroad company was liable in damages for his injuries sustained by reason of the negligence of his co-employees. In discussing the statute the court said:
“Under the language of our statute it is necessary for the injured employee to show that he was injured ‘while engaged in the work of operating such railroad. ’ Construed either by its own terms or in the light of the cases cited from other jurisdictions, it results in holding that the right to recover is not limited to cases where the injury is inflicted by reason of the*708 negligence of a fellow-servant while actually moving a train or engine, but that the law embraces all cases where the injury is inflicted upon an employee while engaged in the work of operating a railroad, by reason of the negligence of any fellow-servant who is likewise engaged in the work of operating a railroad, and that the term ‘operating such railroad’ includes all work that is directly necessary for running trains over a track, and that it includes section hands who are engaged in working upon, repairing or putting in shape the track, roadbed, bridges, etc., over which the trains must run.”
The construction placed upon the statute by the Callahan case has remained undisturbed for many years and has been many times followed by the different courts of appeal. No reason is now advanced nor does any occur to us calling for a reconsideration of the conclusion therein reached.
Applying the logic and analogy of that case to the present we are driven, irresistibly, to the conclusion that plaintiff, at the time of receiving his injury, was “engaged in the work of operating such railroad” and clearly within the scope of said statute. The work of repairing the cars in the repair yard of the defendant company was as closely connected with and as necessary for the operation of trains as was the work of track repair in the Callahan case.
It therefore follows that the judgment should be-reversed and the cause remanded for a new trial. It is so ordered.
The foregoing opinion of Williams, C., is adopted as the opinion of the court.