*1 was because property rather his property than own employer’s large case the causal established in that alone to a extent fact such, if employment, accident and between the connection causal present case, however, the here. In the would be true proven, employment depend- is not the accident and the connection between trying protecting at the time the deceased was proof ent on grows fact but out employer’s property, his protect reasonably con- of and part traveling this road employment reason- employment. The deceased’s with his nected traveling over traveling road at that time and over covered ably robbery. highway That es- him to the hazard exposed the road causal connection. tablishes ac- compensable was a death hold, therefore, that deceased’s We employment arising of and course both out cident is so trial court. It affirm the the defendant Hyde, CC., Ferguson concur. ordered. C., adopted foregoing opinion by Sturgis,

PER CURIAM: —The judges concur. All the the court. opinion of Railway Company, Stogsdill Francisco St. Louis-San v. Homer (2d) 447. S. W. Appellant. Corporation, One, July 9, 1935. Division *2 Phil W. M. Donnelly appellant. J. Jamison respondent. Sizer & Lockmiller for

FERGUSON, employed by C. Plaintiff was rail- the "defendant company as a way laborer at defendant’s New- “coal chutes” at burg, storage Missouri. At these “chutes” the bins are for coal sixty feet, more, ground some elevated above the level of the adjacent railroad tracks. engines, Defendant’s locomotive en- traffic, gaged in both intrastate supplied are with coal interstate storage “by conveyed, “chutes.” The coal in at these bins-is ’’ ‘‘ ’' engines through gravity, from the bins to the apron. a coal chute *3 any does not it part plaintiff’s The evidence disclose that was of ’ ‘‘ ’ in, coaling or anything with, to assist had the duties do engines. storage Coal “dumped” of is elevated and into the the a “hoist” which “bucket,” bins chutes means of which a coal,” about tons of and lowered. “holds two raised The “.bucket” Í‘automatically shaft, in loaded with coal” the of the.bottom ‘‘ top and of shaft operates, when to the the automati- which raised “Alarge engine, storage coal coal oil cally dumps” the into the bins. nearby, pulleys and with connected belts the hoist” installed of; power .operation machinery. for motive the hoist the supplies" charge the foreman Borders was “in chutes.” One, coal 7, evidence, morning According September on the and Borders, foreman, plaintiff to “-oil the slides 1929, ordered and, .engaged plaintiff hoist while was so or rollers” wheels plaintiff machinery operation was the hoist started Borders n injuries part of the loss of each injured. consisted Plaintiff’s of. n ofthe two fingers part hand of the thumb and damages for brought action, this for He fingers of left hand. Act. received, Employers’ Liability Federal injuries under so County "Webster trial the Circuit On had 1, 1930, $15,000. defendant’s On judgment for verdict overruled, appeal affidavit an filed for new was trial appeal this court entered. granting defendant an order and an n Under Section .1929, appeal was re- 1027, Revised Statutes fhe this April Term, 1931, of court and Section then to the turnable appeals,” “appel- “in.cases of 1929,‘requires Statutes Revised ap- proper filed in the office to be shall cause ... lant day term days first before the fifteen court pellate pro- transcript perfect ... court, of such transcript, a certified cause, or, in lieu of ceedings in the n appealed or decree judgment, order entry of-the record copy cause, showing from in said day the term and of the term, month year upon which the same shall rendered, have been together with the granting Though order the appeal.” appeal as stated the file, was April Term, then returnable appellant did filed, n days cause to be that.term,, required by fifteen before 1028, supra, transcript Section either the or certificate men- therein .Appellant tioned. bill exceptions caused a prepared plaintiff’s attorneys, it to Gardner, submitted Sizer and ap- who proved same whereupon appellant its bill exceptions filed office of the County clerk of the Circuit Court of on March Webster transcript 1932. Neither the nor mentioned in the certificate Section been filed court but thereafter and on March 10, 1932, appellant ap- copy filed here a certified pealed “together granting appeal” from order things required certificate set all out to be shown. April Term, 1931, of this April court convened .there- 30, 1931, timely

fore March certificate was last date having thei'eupon in but failed to do so was .default.

Section 1027 provides: perfect appeal shall succeeding prescribed manner and within time next (Sec. do, 1028, supra), respond- section and if he fails and the so produce ent certificate of the clerk of the court granted, which such .appeal stating therein the title cause, from, against appealed date and amount whom rendered, party the same was the name of the in whose favor appeal granted granted, when the. such certificate shall be facie prima evidence of the therein matters stated, and shall be a sufficient basis for a motion in the appellate *4 judgment affirm court to so appealed.from,-and the court shall good affirm the judgment, contrary unless cause to shown; notify failure clerk to appellant, attorney or his record, completion to, transcript, him enable appellate to have same filed in the court in required by the time cause, law, hereby shall be is good considered and declared for ’’ refusing judgment to affirm the of the lower motion. Though appellant did not file the certificate until here March 10, n 1932, than after date, .more eleven last statute, fixed months that, that it should have been-filed did during interim right given to avail elect himself him to “produce” here certificate mentioned and file a motion to affirm and during period that approved examined the bill of exceptions which appellant in the meantime prepared and submitted. hearing for docketed in Division September One for the Term, 1933, during week of the last .January, 1934, call 30, On 1933,

thereof. Division One ordered all cases set week last of the January, 1934, call of the September, 1933, order, this included May Term, 1934, to the continued term One were 1934, in Division May Term, cases However, at the case. for originally set that term days only cases and all other for five

set case, including this continued to division, order of were during time file all this Term, 1934. Plaintiff did not September ab- of its preparation Appellant commenced to affirm. a motion for file same intending to serve and brief of the record stract finally con- had been which the case 1934, term to September, ' shall, that, “Where requires Bule Our tinued. copy . . . file a of Section under shall complete transcript, he de- lieu ... days thirty least abstract at his- respondent copy liver to the copies hearing, and in a like time file ten the cause set before requires “appellant clerk,” and Buie with thereof days thirty before the his brief respondent copy deliver ’’ Term, hearing. September is set for Our the cause day on which 4, 1934, case was set hear- September 1934, commenced tfiis copy havé delivered appellant should September therefore ing on August 12. not later than respondent brief to of his abstract'and attorneys during plaintiff’s and de- However, July, one of negotiations agent engaged look- claim (appellant’s) fendant’s ágent told Appellant’s claim compromise or settlement: ing to'a attorney then attorney appellant’s plaintiff’s ' n brief. Later of its abstract and and under date preparation attorney appellant’s wrote a letter July plaintiff’s counsel -of agent the conversations with claim he 'mentioned in which agent that, “you him claim had advised are said that the your brief if the ease for a of' and' could be settled preparation a lot of work. The serious we could obviate only amount reasonable work in this whether was interstate case question fraught question danger plain- which is is a from I admit Supreme in view recent decisions of the standpoint Court tiff’s this case States, and to save from a will United remand briefing, if it can be very careful done at all.” It is then require your possibly “I think with recommendation we that, can stated agent $500 case;” that offered “but I told claim settle expenses my him . . pay not even but if would that would get through. I could I try I At least believe would $1000 pay amount of the In view even so. to do -affirmance somewhat I chance for through a doubtful think this very receipt nominal settlement.” Upon be a indeed of this would *5 attorney got in touch with writer thereof, appellant’s made letter requested agreement and an oral the recommendation entered attorneys that appellant’s attorney two withhold between into printing appellant’s pend- and abstract and brief completion rejection by plaintiff ing acceptance or the recommended settle- delay completion if this should so abstract meat and same, and brief that could file serve in the event and made, required was not the recommended settlement within the time respondent by rules, supra, then would waive the failure to make “advantage timely service and no taken” that would be and agreement filing had of respondent’s like and service Monett', attorneys Plaintiff reply Newburg, brief. resided at appellant’s department ap- Springfield, the offices of claim were at charge attorney in pellant’s case resided at Lebanon and general department appellant’s offices of law were in St. Louis. attorney charge appellant’s Therefore after recom- of the case suggested attorney mended amount as a settlement elapsed during negotiations considerable time were in which the progress finally rejection resulting plaintiff of the proposed Thereupon attorney settlement. appellant’s completed its abstract and brief printed, and caused same served and filed. The abstract acknowledged and brief to, by, were service delivered and thereof attorneys August respondent’s August on 23 and filed here days being days filing the service eleven and the fifteen late. acknowledgment attorney, of plaintiff’s letter to attorney,- receipt objection and abstract brief no or com- plaint was as to delayed made service.

Appellant’s on for a appeal had been the docket of this court year finally Rearing September and had been set supra; approximately years noted and passed three five months had date, by-statute, the last since fixed it should have filed plaintiff’s right' at which time file' the certificate to affirm accrued; under the 1027, supra,' after filing and before appeal appellant date the certificate of had exceptions caused bill of prepared to be 'and had been ex- approved attorneys; by'plaintiff’s filing amined after the statutory certificate of appeal appellant at expense considerable had caused abstract brief prepared,, printed, to be during served filed and that interim had accepted respondent’s negotiate looking offer coihpromise accepted and had way pay compromise offered to the amount settlement which plaintiff’s attorney tentatively proposed yet during all plaintiff neglected period withheld, and failed to file a motion to affirm regular under said Section and allowed five court, terms of as well as the call intervening, terms pass without days September 7, same. But on 1934, four before the date the hearing here, having ease was set appellant’s attorney by notified telegram, September 4, of date of of intention to do so, filed the certificate mentioned said Section and a motion to affirm the based separate thereon also a motion to dis- ' conceding miss appeal. that, Plaintiff on the judg- merits the *6 reply appel- to to file a brief refused be sustained cannot ment which has motions, on or fall elects to stand brief and lant’s briefed. the mo- supra,

Invoking provisions of 1027 and .the sections affirmed because nisi have the affirm seeks to tion to pre- within appeal to herein “appellant perfect time failed comply not with specifying appellant law” did that scribed 1028. motion to dismiss 1027 and The requirements of said sections failed ground “appellant comply on the that appeal “governing service of abstracts of this court the” rules ” opposing record and counsel. .briefs ... requires affirm first consideration. We The motion by ref quoted, supra, parts Section 1027 and pertinent provides that if it will noted that section erence thereto s.aid “perfect his in the manner within appellant fails to appeal by. cer .respondent files the prescribed.” the time Section motion thereon that therein and a to affirm based tificate mentioned (cid:127) good cause judgment, unless appellate court “shall affirm the “good why contrary Appellant cause” be shown.” here up, verifies to affirm should not sustained first sets be. practice by affidavit, that “it is and has been the in the'circuit court County” “attorneys upon, including of Webster the at .the torney rely steps appellant” “when all had been taken that appellant perfect an an the clerk of the circuit court appeal” timely 1028, in certificate,. would forward the allowed perfect transcript,” of, timely lieu of “a to the clerk same file in, proper -‘that if appellate court and not done the “notify appellant’s attorney clerk of court” would that circuit n completed appeal been or had not transcript .not filed;” appellant’s attorney paid that this instance the docket stated) (when, things necessary all fee and “did to be done (a conclusion); perfecting” appeal appellant and its attorney aforesaid; upon practice appel or custom -the relied. advising lant appellant “received- notice from the circuit clerk no attorney appeal filed;” or its had not been .the “through oversight an clerk of the circuit or inadvertance” the filing foregoing timely appeal. “overlooked” the said faets, by appellant, showing “good as stated not- do constitute a cause” or excuse file the within for.failure the time The,statute 1028) required by (See. says, appellant statute.. proper filed in the appellate office of the .'. cause court,” specified “perfect transcript” within the time,-either mentioned,in Taking the certificate lieu thereof. the facts in the light assuming, though most no- favorable it stated, paid so ample where that it the docket fee in time to there- after allow statutory of the certificate here within the alleged rely at upon had no nevertheless custom.or tempt upon shift' cir responsibility the clerk duty ' ‘‘ repeatedly file has cuit court to this court. This court held cannot shift it duty that that rests and that he *7 upon (en banc), clerk.” ex rel. Gilman the v. Robertson [State Appellant 610, 175 S. W. there cites 661, 264 Mo. and cases cited.] 282 222 Green, 521, Reeves Mo. S. W. 795. In v. that cáse the copy judgment, expiration certified after etc., of the was filed Against statutory respondent’s appel motion to affirm time. circuit, showing lant filed “án affidávit had directed the clerk transcript judgment (presumably to make out and forward a time) within statutory paid docket and fee thought and the clerk had to the matter.” ex rel. attended State Robertson, supra, Gilman v. and the cases there cited not referred are to, cited, disposed by nor any are cases but this court the motion made, merely saying, statute, appellant good showing “under our against judgment.” However,- affirm the motion to if what appellant’s nevertheless there said followed does herein affidavit comparable ap not show a of facts. It stated that state is nowhere attorney timely pellant’s paid the docket fee and and ordered prepare directed the clerk of the circuit court to and forward the reiterate, constrained are, however,' certificate. We to follow and supra. Robertson, Speaking rule in Gilman v. declared copy (com judgment granting appeal certified and order monly 1208 appeal), referred to as the short form of which Section perfect transcript,” transcript, allows to be filed in as a lieu of k Springfield Appeals Land said Lasswell & Lumber Langdon (Mo. App.), 204 Co. v. S. W. 812: is the “While duty transcript request make clerk’s for the on payment fees, yet proper appellant’s duty it is broad to cause proper appellate proper filed time. duty perform, except The clerk has no make the tran request, script appellant’s diligence at must use having having it in time. this done and filed He cannot cast this duty 264 Robertson, on the clerk. ex rel. v. Mo. [State copy judgment S. W. To make a certified order 610.] granting appeal required perfect appeal —all —seldom work of clerk, takes more than a few hours’ and seldom will respect if diligence the clerk be found at fault due is exer appellant.” cised

Appellant delinquency next sets not as an for' its up excuse why appeal but cause the motion to affirm should be pursued by respondent overruled that the course herein amounts circumstances, held, waiver, and should be facts and under the be a by him, benefit conferred have judgment appellant’s upon appeal affirmed failure to file the opposed As to this the time fixed statute. contention

within opinion Per Division plaintiff cites and relies Curiam Seid, 137 Mo. de of this court Ziefle v. S. W. One appeal Term, 1896. returnable that case the cided Term, 1895, but April copy to the certified granting August 29, 1895. appeal,was order not filed here until appellant’s 18, 1896, On November abstract of the record was served respondent. 15, Í896, respondent On filed a motion December ap file because of failure to to.affirm peal prescribed by within the time statute. The motion affirm granted first a rehearing overruled but motion sus and the tained. The states the situation thus: counsel, frankness, with entire admit that ‘the should Term,’ perfected transcript assign April delay ‘legal ‘press business,’ conceding negligence’ as cause the, they in that matter. But resist to affirm because brought hearing appellants on until after the set for case was *8 gone expense to preparing printing had the of abstracts and , briefs, filing of them It is in court.” then said: sub- .and of, defendant, respondent, claim is that should stance promptly, having have moved more failed affirmance and that . to dó so . . favorably the court now entertain the not should pending good motion. . It admitted that has no cause ... given for transcript (or, the failure file in to in due the instance, this ‘good the certificate). it,certainly But would be cause’ in, against if waiver, respect affirmance a time, of matter of shown, . question here is the facts whether aforesaid establish any regard waiver. Ye do not for omission to an af- move firmance, until hearing hand, itself, constituting, is near at of ground a deny to . nothing such a -. motion. There in th.e suggest delay moving Missouri law to in for- affirmance delay will cure of appellant following requirements” of “No doubt, statute. parties may (to some extent and in some circumstances) the-advantages-of waive hold statute. But we lapse of consequences time alone does statutory not avert .all delay of appellant. the. against just such-delay that the It.is ’’ statute is aimed. Clearly purpose expedite -Section-1027 is to appeals disposition and the method, provides whereby, thereof. It if appellant, good cause, delays timely without and fails to file appeal his in the proper appellate respondént court may have the litigation appeal disposed terminated and have the an affirmance. Thus an appellant cannot, affirmance, risk except of an with- filing hold the appeal, judgment his abeyance hold the prolong or disposition defer Primarily the final the cause. statute is respondent protection benefit and Seid, Ziefle v. supra, says that, “No ... the court doubt advantages may some circumstances the of the statute” waived. However, in that case it have been the court seems that the facts there were not sufficient a waiver stated to constitute though holding lapse the real is confined “that proposition consequences of time does statutory alone not avert all the.

delay referring Without appellant.” the Ziefle case one appeals, opinions, courts much later has held a state respondent facts similar that in ease the instant that the waived delay-in appellant’s, ground on appeal and .that overruled (Mo. motion to affirm. In Swartz v. Hiler App.), 207 ruling S. Springfield Appeals, respondent’s W. affirm, though

motion to says: appellant “But inhe default we do respondent position not penalty believe that in a invoke the provided copy for failure file here certified and order granting no appeal attempt time. Respondent macle penalty appellant gone.to invoke the until after had failure expense prepare and trouble to his abstract of the record and briefs. that,

Respondent knew, or ascertained, could appellant easily prosecuted appeal diligence law, had not provided by due yet, notwithstanding respondent knowledge, per- stood mitted prepare the abstract serve briefs any he penalty before made move to invoke the for failure. We think respondent Larson-Meyers too comes late.” Mathewson v. Co.

(Mo. App.), court, ruling S. respondent’s W. present affirm filed under of our 1027, says: “Although to the October returnable this, lodged Term, year thereafter, and was for a steps respondent took to have the affirmed till .no 29,. filed such motion 1918. At that time the filed his abstract of the and his statement brief. .and *9 to judgment. We must the affirm overrule motion the If in Term, default without either appellant was October cause the Term, Term, 1918, or March the the of this try plaintiff to and wished out such. of de- question cause, timely fault then he should have without filed a motion to required by with as affirm the clerk’s certificate Re- respondent 1909. will vised Statutes not allowed The be to stand by no action have the and take in affirmed case of appellant appellant perfected by default the till has the his appeal printing of expense and abstracts incurred and briefs and then also, St. ask affirmance.” of Louis Appeals [See, Nelson, App. 51, & Co. v. 148 S. Gaar-Scott Mo. W. 417.] primary Subscribing fully proposition to announced in the “lapse ours) supra, (italics ease, Ziefle of time alone” does overruling yet ground for motion affirm not afford we are im- holding pressed of with the correctness of Appeals, Court facts instant case. We upon a of such as exists supra, state by again of this matter here prolong discussion not further commenting facts. We set the facts reviewing on the have out and detail, supra, and there summarized and commented thereon. in fullest long a Respondent his motion'to over only riot withheld affirm héré did not file appellant was default and period of time after days be heard but date the cause was to same until within four proceed by acquiesced permitted the’appellant his’course and this court as if the term to term in and the cause to continue from by question'were permitting stood "not to raised and print, exceptions serve prepare prepare, and file its bill of and not Respondent did file its briefs. elect arid abstract record and timely advantages to him offered avail himself of the benefits and it is by purpose invoke the intended statute statute serve facts here we are constrained and therefore under the ground the time overrule his motion to affirm on the that at respondent to invoke the was filed’ had waived’ upon’ of the statute which he relies. for fail

We now to the dismiss the coiné motion comply governing service ’with- rules' ure stated, supra, the facts the' abstract and briefs. We bearing appellants. this matter shown affidavits filed agreement The an was with at affidavits show that torney whereby delay appears was waived. It attorney in attorney approached by plaintiff’s ref appellant’s was compromise making set proposed erence to recoirimendation for plaintiff agreed attorney tlement that it was1then between attorney appellant’s recommended com in the event the question promise would made or “ad was effected that no delay .any vantage service abstract taken” of completion by appellant withholding occasioned brief negotiations; printing pending thereof outcome negotiations delay printing prolongation caused the serving appel filed and brief. affidavits abstract lant stand uncontradicted and we therefore overrule to dismiss. brings We have heretofore

This us to merits the case. briefly stated nature the work in the defendant’s at the laborer at He injured. coal chutes. He such work thereabout did connection care, operation machinery un maintenance and storage loading coal delivered directed fore there *10 parts machinery man. He from time to time oiled certain hoist when foreman, Borders, engaged in as ordered and was so jured. in the nature a Appellant contends that its instruction of favor directing demurrer a in its offered to the verdict evidence and

137 given close of the evidence in the case should at the all invoked, and assigns error. Plaintiff the refusal thereof as Liability Federal sought bring within, Employers’ himself evidence, appears, it from .the Act but submits here that injured he was law, a matter of was not at the time in- engaged commerce so as to come interstate within act; Federal..Employers’ Liability Act of that The declares engaged commerce be- “every common in carrier railroad while damages . in any of . . liable tween several states injury employed by such carrier any person suffering he is while employee, commerce, in of of or, in such case the death such results, whole personal representative,” etc., injury if in her or officers, its part negligence from carrier or any or in we are bound employees. In the the act agents application or Supreme the United follow the decisions of the is by which be determined applicability and the test States Western Railroad Delaware, in Shanks v. Lackawanna & announced 1916C, Sup. 436, L. Co., 239 U. 36 Ct. 60 L. Ed. S. R. A. 1916). (January, employed the defendant’s w;as in Shanks engaged moving in an repair shop. injury of his At was he. machinery through power shaft was overhead communicated Supreme repair United States said: used in work. The Court of the only recovery under the act “It is essential a engaged time of the in interstate commerce at the the carrier person suffering injury be then em injury but also that question . . The the carrier . ployed in commerce. is, was in inter- employed at the the injury

decision Shanks time of Liability meaning Employers’ commerce within the state immaterial, employment What Act? was on other occasions being . . when the the act refers to service rendered Having injured was in mind the nature and usual course suffered. purpose of the business which the act relates the evident Congress act, adopting speaks in it interstate com- think we legal sense, practical in one better merce, not but a technical (see States, the occasion Swift & Co. v. United U. suited 375, 398, Sup. 518, 525), that the true S. Ct. L. Ed. employment is, in such intended test commerce sense employee, injury, trans- at the time interstate practically portation closely or in worh it to be so related to Coming hand, apply it? the test to ease part transportation, plain employed Shanks was not interstate roadbed, bridge, repairing keeping usable condition engine, transportation. car or other instrument then use in such ma- doing altering he was location a fixture in a What shop. interstate trans- chine connection between the fixture and best, only portation of the fixture remote function *11 138 parts machinery power repairing

was communicate used in engines transportation. This, in we which were used some k think, engaged demonstrates that the wor in which Shanks was (cid:127) . transportation prac . was too from remote interstate it, part employed tically and therefore that was not inter meaning Employers’ Liability state commerce within the (Italics ours.) Act.” so The test -declared was followed and re Chicago, Burlington Harring affirmed in & Quincy Railroad Co. v. 177, Sup. 517, 1916). 36 ton, 241 U. S. 60 (May, Ct. L. Ed. 941 In injured employee engaged case the taking coal fro mstorage tracks to bins or chutes for- the use of' locomotives used in movement'of interstate -traffic. quoting intrastate 'After of the Shanks ease for determining rule employee whether an engaged in interstate it is said-.' there was “Manifestly, commerce transportation close direct no such relation to interstate in the taking nothing of the coal to the coal chutes. This was more than putting supply of the coal in a place from which convenient required be taken as -could use.” The court held the service was hot in interstate commerce. May, 1920, In Supreme the Federal cases, Court ruled two Company Collins, Erie Railroad v. 253 U. Sup. 40 64 77, 450, S. Ct. 790, Company L. Ed. Railroad and Erie Szary, 253 40 86, Sup. 454, v. U. S. 64 794, Ct. L. Ed. rule case,

test or Harrington case, announced in Shanks reaffirmed ease,

was not In employee, followed. the Collins injury, gasoline engine time of the operating pump at the into a tank for water the use of locomotives both inter- ’ Szary duty and intrastate In state commerce. case dry sand, by employee applications heat, was to use operating locomotives in both interstate and intrastate commerce. In that the employer was, each case it held in jury, engaged in interstate commerce within the terms Federal ’ 1931) Employers Liability Act. Later (November, Chicago Ry. & Bolle, 74, v. 284 S. 52 Sup. 59, Northwestern Co. U. Ct. 76 173, Supreme Ed. again L. Court United States reaffirm declaring ing test laid down in Shanks case observed: rule announced the Shanks has categorically case applied following among restated cases others: Southern Commission, 263; Co. Industrial Accident Pacific v. 251 U. S. 259 Davis, 185; Industrial Accident Commission v. S. 182, U. Balti & Ohio v. Burtch, more Southwestern Railroad Co. 263 S.U. applicable firmly 543. The test thus established is not to be shaken where, one two decisions of this court inadvertently; employed ‘commerce’ has been instead of the word ‘trans word ” Plainly portation.’ Szary reference the Collins and Chicago & Eastern Illinois Railroad Co. v. Industrial cases.. Illinois, Sup. U. S. 76 L. Commission Ct. Ed. Supreme says: (January, 1932), Court of the United States reading case, “From a apparent Collins it is test of Shank's case was not that the followed the words being inadvertently ‘interstate commerce’ substituted words for. the subject transportation.’ ‘interstate The Szary the same ease *12 criticism, simply since it followed the Collins case. Both cases are harmony general nut of with the current of the decisions of this they definitely court since the Shanks case are now ” last-mentioned, case, Chicago overruled. & Illinois Eastern Illinois, “Thomas, Railroad Co. v. Industrial Commission of an em ployee company, attempting of the railroad to oil an motor electric running, injured while having caught it was hand gears. engaged The railroad both intrastate interstate (cid:127) chute, power hoisting commerce. The motor furnished coal into a by, of, engines to be taken therefrom -and the use locomotive principally employed in freight.” the movement of interstate quotes applies prescribed the test in the Shanks case and employee not,. holds that the at the of injury, meaning interstate commerce within the of that term as used in the Employers’ Federal Liability Act. Allen v. St. Louis-San [See Ry. Co., Francisco 53 (2d) 884, Mo. S. W. where the cases, to, others,. fully above referred are reviewed and- dis ; cussed Cox v. Co., Missouri Pacific Railroad also. Mo. (2d) 962; S. W. (2d) Middleton Co., 929; v. Southern Pac. 61 Fed. Ry. O’Dell, Southern v. Co. Fed. Under the correct and 540.] applicable test engaged, the instant ease was not injury, time he sustained the in interstate commerce within the meaning Employers’ Liability the F'ederal Act. Plaintiff’s coun frankly they sel relied, rests, concede that and that case upon Szary cases, the Collins and supra, and that the1merits cannot stand.

Following decisions, supra, Supreme Court of the States, do, United apparent as we are bound to that defendant’s is. directing instruction verdict favor given should have been and that the must therefore be reversed. It is so ordered.

Hyde Bradley, CG., concur. foregoing opinion by adopt-

PER Ferguson, C., CURIAM:—The judges except All concur, Coles, ed as the of the court. sitting. Jnot