198 Mo. App. 552 | Mo. Ct. App. | 1918
Plaintiff brought this action, under State law, against both defendants to recover damages for an injury inflicted upon his eye by a red hot cinder emitted from an engine of the defendant, Milwaukee railroad, as the result of the alleged negligent maintenance and use thereon of a defective smoke consumer and cinder, arrester. The petition alleged that the Milwaukee railroad was. operating its trains over the tracks of the Terminal railroad as a lessee for hire.
At the close of plaintiff's case and also at the close of all the evidence, both defendants demurred separately, each asking a peremptory instruction to find in its-favor. In urging the final demurrers, the defendants expressly raised the point that the evidence showed the case-to be governed by the Federal Employer’s Lia-
The injury occurred, and the cause of action accrued, April 24, 1913, but the suit was not brought until August 28, 1915. Consequently, if the cause o'f action is controlled by the Federal Act, as to both defendants, the plaintiff has no case since suit was not brought within two years. [36 U. S. Statutes at Large, p. 291, chapter 143; Atlantic Coast Line Railroad v. Burnette, 239 U. S. 199.] The vital question, therefore, is whether or not the facts of the case bring it under the Federal Act?
The defendant Terminal Company owned the old Union Depot in Kansas City, Missouri, together with a line of railroad around said city with tracks leading to said Union Depot and connecting with practically all of the many trunk line railroads entering Kansas City. Nearly all passenger trains entering and leaving Kansas City used the said depot and the Terminal raffway tracks. In fact all the trains, freight as well as passenger, of nearly all the great trunk lines entering Kansas City used the tracks of, and the terminal facilities afforded by, the said Terminal company. The defendant Milwaukee Railway Company was one of these trunk lines, and, under a contract with the Terminal Company, operated its trains over the latter’s said tracks. Among them was a Milwaukee passenger train No. 8 which ran from Kansas City to Chicago via Ottumwa, Iowa; and Milwaukee Engine No. 3106 was the regular engine which pulled this train out'.of Kansas City on its interstate journey. According to plaintiff’s evidence it was the regular engine assigned to that train provided it met with no accident, and the record does not show that it was used in any other
Plaintiff was the General Yard Master of the Terminal Company, and his duties included the supervisory charge of the operation of all trains using the Terminal company’s tracks, the direction of affairs following wrecks and accidents thereon, and included the clearing of the tracks so that general traffic would not be hindered or obstructed.
On the day of plaintiff’s injury, while said Milwaukee train No. 8 was proceeding from the Broadway yard to the Union Depot, its engine No. 3106 was derailed about one-and-one-half miles from said depot. Plaintiff, as General Yard Master of the Terminal Company, was notified and immediately took charge of the situation. The Milwaukee had sent another engine which had arrived on the scene when plaintiff reached the spot. Plaintiff ordered the train to be uncoupled from the derailed engine and had it attached to the other engine so as to take the train out of the way and on to the depot for its passangers. By direction of the Milwaukee Yardmaster who was present at first, but who shortly after went away, the crew on the derailed engine traded places with the crew on the other engine and train No. 8 went on to the depot where, after securing its passengers, it left on its interstate trip.
In the meantime plaintiff was endeavoring to get the derailed engine back on the track and to clear the Terminal tracks so that general business could be dispatched thereover. According to plaintiff’s testimony the derailed engine was tying up the. Terminal’s busi
After train No. 8 with its new engine had gone on to the depot, plaintiff had two engines endeavoring to pnll the derailed engine on to the rails again, bnt, to do so, it was also necessary for the derailed engine to greatly exert its own power. When the signal was given for the concerted action of all three engines, the engineer on the derailed engine applied its power to the utmost, throwing the throttle wide open and causing a heavy exhaust of steam to be thrown out of the smoke stack, during which plaintiff got a cinder in his eye.
As the Terminal railway tracks and facilities were used and necessary in the transportation of persons- and property by the “trunk line railroads” which entered Kansas City, the said defendant Terminal railroad was engaged in interstate commerce. [United States v. Union Stock Yard & Transfer Co., 226 U. S. 286; Ohio Railroad Commission v. Worthington, 225 U. S. 101; Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498; Trowbridge v. Kansas City, etc., R. Co., 192 Mo. App. 52; Interstate Commerce Act, as amended June 29, 1906, 34 Stats, at Large, p. 584, chapter 3591.] All railroads in this State are required to engage in interstate- commerce, and it would seem that, even if the record were silent as to the. nature of the commerce carried on by the “trunk line railroads entering Kansias City,” still we might be able to'take judicial knowledge that such trunk lines were engaged in interstate commerce. [State v. Missouri Pacific R. Co., 212 Mo. 658.] However, the record shows affirmatively that both defendants were railroad corporations and that they were éngaged in interstate commerce, The Milwaukee is clearly an interstate railroad, and not only were cars transferred between it and the other trunk lines over the Terminal railway’s tracks, but the Milwaukee interstate train No. 8 was operated over them daily, and its derailment, necessitating the work in which the injury was received, occurred on said Terminal
But the cause of action is not within the Employer’s Liability Act.unless the injury occurred “when the particular service in which the employee is engaged is a part of interstate commerce.” [Illinois Central R. Co. v. Behrens, 233 U. S. 473.] Hence, the question arises was plaintiff engaged in interstate commerce at the time he was injured? Clearly he was as to the defendant Terminal Company because he was then engaged in clearing the tracks of said company in order. that transportation thereover might not be hindered or impeded. The tracks being indispensable to .the interstate commerce in which the defendant Terminal railroad was engaged, the clearing thereof was not a matter of indifference to such commerce, but was “so closely connected therewith as to be a part of it.” [Pedersen v. Deleware, etc., R. Co., 229 U. S. 146, 151.] The authorities all hold that when the work being done is such that it directly affects or facilitates the carriage of interstate commerce, then the employee is engaged in such commerce. [New York Central R. Co. v. Winfield, 244 U. S. 147; 37 U. S. Sup. Ct. Rep. 546; Southern R. Co. v. Puckett, 37 U. S. Sup. Ct. Rep. 703; Seaboard Air Line R. Co. v. Koennecke, 239 U. S. 352; Hardwick v. Wabash R. Co., 181 Mo. App. 156; Christy v. Wabash R. Co., 191 S. W. 241.]
Again, train No. 8 was an interstate train, and it had started on its regular interstate trip, since the bringing of the train to the depot was the necessary preparatory step to the principal interstate movement. [North Carolina R. Co. v. Zachary, 232 U. S. 248; New York Central, etc., R. Co. v. Carr, 238 U. S. 260.] However, it will doubtless be said that the injury did not occur until after plaintiff had disconnected the train from its derailed engine and had sent said train on its way; and that, at the very time of the injury, plaintiff was merely engaged in the work of assisting the derailed engine to get back on the rails and return to .its roundhouse. No doubt he was doing this, but such was not the main purpose nor the full result of
But it is said plaintiff was an employee of the Terminal Company and not of the Milwaukee, and it is therefore, urged that the Employer’s Liability Act has no application to the latter railroad. It is true, the liability created by the Act is a Lability to the employee of the carrier and not to others. [Robinson v. Baltimore, etc., R. Co., 237 U. S. 84, 91; Chicago Rock Island, etc., R. Co. v. Bond, 240 U. S. 449.] But, under sections 3078
“Whenever any such railroad, street railway, or other railway company or corporation, or any receiver thereof, shall lease its road or track or any part thereof to any other company or corporation, or shall license or permit any other company or corporation, under any running agreement, to run cars, engines or rolling stock upon its road or track, in this State, the company or corporation so leasing its road, or such part thereof, to such other company or corporation, or so licensing or permitting the use of its road or track hy such other company or. corporation, shall remain liable for all acts, debts, claims, demands, judgments and liabilities of the lessee or licensee, or any sublessee or sublicensee,' company or corporation, the same as if it (the lessor or licensor) operated the road, or such part thereof, itself; and such lessee or licensee shall likewise he held liable and may sue and be sued in all cases and for the same causes, and in the same manner, as if operating its own road.”
The theory and purpose of such law; is to prevent a railroad from evading the responsibility involved in the exercise of its corporate functions by delegating the operation of its road to another. Nor can a railroad avoid such responsibility by using the tracks of some other railroad. In other words, the effect of such law is to make the road that owns the track and the road
Tbe case of Robinson v. Baltimore and Ohio R. Co., 237 U. S. 84, is not contrary to tbe position we herein take, since in that case tbe plaintiff was a Pullman • porter and was ’ not in any sense an agent or servant of tbe defendant railroad company in tbe performance of any of its functions as a common carrier, and tbe railroad had in no way made tbe Pullman company its agent to perform such functions. Hence, the porter could not be regarded as an employee of tbe railroad within tbe meaning of tbe Act. Nor can the case of Chicago, etc., R. Co. v. Wagner, 239 U. S. 452, be regarded as in point here. Because in that case plaintiff’s cause of action was not based upon his status as an employee entitled to recover under tbe Liability Act. He did not sue bis immediate employer, nor was any claim made that such immediate employer was, by virtue of local law, an agent of the defendant Alton railroad in tbe performance of its functions as a common carrier. In addition to all this, it was conceded and agreed upon at the trial “that the action was not governed by the Federal statuté.” [239 U. S. 456.]
We are, therefore, of tbe opinion that plaintiff’s cause of action is, as to both defendants, governed and controlled by tbe Federal Act. It is well established that when such Act does apply it is supreme and excludes every other remedy. The subject of liability is so completely covered as to prevent recovery under any other law. [Second Employer’s Liability cases, 223 U. S. 1; New York Central, etc., R. Co., v. James Winfield, 244 U. S. 147, 37 U. S. Sup. Ct. Rep. 546; St. Louis, etc., R. Co. v. Seale, 229 U. S. 156.]
The judgment of the trial court is affirmed.