*1 Mr. Cullen: popular racket. a country it sort becomes over a reflection and on the court a reflection as object I to that statement No reflection at Crow: law. General of the the administration a has become people insane will of To break the Mr. Cullen: all. it. The Court: counsel for court should rebuke ? I submit racket Why, sure.” objection Mr. Cullen: I that. sustain will requested. nothing further sustained and objection was nothing complain about. is there situation Ferguson is and it ordered. should be affirmed Hyde, (7(7., concur. adopted C., foregoing opinion is PER CURIAM: —The Bradley, judges court. All concur. opinion as the Chicago Toussaint, Appellant, J. Cleveland, Cincinnati, Daniel Corporation. Company, Louis & St. (2d) 263. Two, Division (7. Molloy Inmam appellant. Richard M. and O. *2 Chapman respondent; Quigley
Wilton Z>. E. N. Bax- ter of counsel. *3 reassignment. writer comes to the on
WESTHUES, case C. This respondent railway for Tóussaint, company Appellant, Daniel J. sued injuries alleged while dаmages personal to have been sustained for plaintiff petition railroad car. the asked repairing a $45,000. Employers’ in was based on the Federal the sum of cause gave Liability plaintiff’s the trial an Act. At the close of case court instruction in the nature of a demurrer to the evidence. Plaintiff involuntary with move to the same aside. took an Plaintiff, nonsuit leave to set nonsuit, which
later filed a motion to set aside the the court duly appeal An overruled. was taken.
Bespondent plaintiff’s evidence action contends that disclosed the plaintiff not, Federal Act at time was not within the because was the engaged transporta- in injuries, of his work connected with interstate plaintiff’s tion; аlso, assumption risk. that evidence showed of plaintiff jnot, Since that was at his we have concluded the time of engaged injuries, relating transрortation, in work to interstate we question assumption need not discuss of of risk. The are the facts railroad, A 54110, No. these: box car of the defendant in East arrived April Louis, 4, 1929, with from Illinois, St. on loaded merchandise 5', April It Indianapolis, Indiana: was unloaded and then it was placed repаir re- rip on a or track. Plaintiff a what was called was 8, making April re- pairman assigned, to the task of and he was
581 car, missing, from the broken, A or sрring was upon this car. pairs a coal spring a from instructions, removed following plaintiff, in re- using a clawbar While on car No. placed it сar and slipped and the end bar car the spring the coal moving the from injury. resulting in a serious groin, plaintiff struck in the bar the ear, after be- was alleged defective. the clawbar that Plaintiff day, and the next repair track from the ing was taken repaired, Anderson, for left destined merсhandise and was with 9, loaded p. m. Indiana, at 6:30 Co., Ry. 239 L. & W. Delaware, Shanks v. In the case of was thus nature 556, in eases applied test to S. be 558, U. stated: in injury, еngaged interstate employee, time of the
“Was the at the practically closely it as be related to transportation in work or Ry. v. Chicago & I. Co. in E. it?” This rule was reaffirmed part of Court, Supreme Commission, 296, where two cases U. S. also, test, [See, Chicago, applied were overruled. which had a different noted Ry. S. It will be Bolle, Co. U. & Northwestern v. 74.] point must be connected with cases stress the work that the that meaning than inter a narrower which has transportation interstate consistently required do, has court, commerce. This as it is state Co., Railroad Mo. rule. Bеnson v. Pac. applied Federal [See Q. Co., (2d) 656; C., B. 851, 334 Mo. 69 S. W. & Railroad Jarvis 428, (2d) 602; Phillips 37 W. v. Union Terminal 327 Mo.
Co., (2d) Mo. 40 S. W. 1046.] repaired by plaintiff In the case under car consideration the journey. completed of service had an It was then taken out interstate repairs. exclusively no There was thаt car used evidence *4 transportation. therefore, speak, in interstate was, The car toso dead yards, subject designated in reрaired the to be when and needed when either interstate or intrastate commerce. We will by review a number of the cases cited In North appellant. 232 Zachary, fireman, upon Carolina Railroad Co. v. S. 248, U. an engine designated which had been to train, haul an was interstate fatally injured. engine , prepared by oiling, The fireman etc had begin and journey was about to an interstate was when he struck Chicago killed. Railway and In and Northwestern 241 Bower, Co. v. 470, an engineer, U. S. engine before was injured, placed he had an upon outgoing couple the track in rеadiness to to an cars for inter- journey. state In v. Bridge LaLone St. Louis Merchants’ Terminal Co., 316 Mo. 293 S. 835, 379, plaintiff injured the was empty cars, designated whilе haul, being for an interstate taken were freight to the house to be loaded, and in Morrison Terminal v. Rail- Assn., (2d) road 775, plaintiff injured S. W. was the while repаir- ing a car which not completed journey. had its interstate car might trip on its it continue to repairs so that its taken out for
was injured partiеs were designated In the three cases the first terminus. engines cars with movements of and which had to do performing labor directly therefore, thе work was transportation, and, in interstate clearly within Federal transportation and the connected with such repairman’s nothing work do thе had to Act. In the last case cited completed car, had its interstate with movement of the but it the not journey was, repair the made therefore, and at the time was plaintiff, transportation. in the interstate Plaintiff’s work service of closely was, therefore, in that case сonnected with interstate trans- so portation are part apparent as to be a it. is that those cases It point. in not Minneaрolis
The facts in the & St. case of Paul Railroad Co. Winters, 353, very S. present U. were similar in to the facts the plaintiff making engine case. the was an repairs upon There which had 18, been used on October in an interstate movement. It was again date, October used on It was on this October that injured. plаintiff Supreme Court, was The United States hold- in ing plaintiff’s that Act, case did not come under the Federal said: engine, “An such, permanently as is not any devoted to kind engine traffic appear and it does not especially was that destined anything more definite than such it might business as be needed for. It was in interrupted not an interstate haul be repaired go simply and on. It had some interstate business and had finished yet begun upon any not other.” engine
It will be noted that the in that case placed was in in- day terstate service repairs the same were made. It was out of only dаys. service three in upon So this case the car plaintiff which working was completed had journey an April' 5, interstate on and placed repair begin any track 6. It upon did not other repairs run until made. were Plaintiff’s affirmative after showing placed of the situation his case оutside of the Federal Act. This conclusion renders points by appellant the other made imma- terial. Cooley is Bohling, CC., affirmed. concur. PER foregoing opinion by CURIAM:-—The isC., Westhues,
adopted the opinion judges as of the All court. concur. Proceedings Henry against S. Conrad. 105 re Disbarment *5 1.
(2d) Banc, February 3, Court en