222 S.W. 412 | Mo. | 1920
Lead Opinion
This plaintiff, in an attempt to get on a freight train of the defendant company, fell under the wheels, and his left arm and left leg were so badly mangled it was necessary to amputate them. The accident occured *504 Feb. 19, 1917, at the station of McAlester in the State of Oklahoma. Only six days before, plaintiff had taken employment from the company as a common laborer in the bridge construction and repair department; but he had been in the service of the company previously for three or four months in the same department. The local headquarters of the department were at Muskogee, Oklahoma, a town and station on defendant's railway fifty miles north of McAlester, and where the foreman of the bridge department hired plaintiff. Eight or ten miles south of McAlester is the station of Savannah, and to this station plaintiff, on February, 18, 1917, was ordered by the general foreman of the department to go, with a carpenter by the name of Hughes, to help Hughes in the construction of a semaphore; a device used by the railway company to signal trains. The general foreman said to plaintiff in Hughes' presence, "You will go with Mr. Hughes to Savannah to work on the semaphore signal." The company furnished Hughes a pass for the transportation of himself and plaintiff to Savannah. The pass was for "one carpenter and one employee, when presented with form 214, — between stations on McAlester Dist." Said form notified "passenger conductors and train auditors that the form identified Hughes and one man" as entitled to use the pass from Muskogee to Savannah. The printed rules of the company regarding the use of passes were put in evidence, and one of them provided that no pass would be honored on a freight train not scheduled to carry passengers, unless it bore on its back this endorsement: "Good on freight trains." Further, that passes must not be used for travel on personal business. Defendant was building a new depot at Savannah and a new semaphore to take the place of old ones still in use. The old semaphore was used for signalling both intrastate and interstate trains of the defendant company, as the railway lines of the company extend through several states and it operates trains through them. At the time of the accident the new semaphore had not been put into use for any purpose; but when completed it would be one *505 of a succession of semaphores along the interstate lines of the defendant company, just as the old one was and had been. Plaintiff and the carpenter Hughes, who is spoken of by plaintiff as a "straw boss," worked on the semaphore during the day of the eighteenth, and not having finished it at the hour for quitting work, intended to continue their task the next day. Hughes said to plaintiff there "wasn't any place to stay in Savannah;" so they would run up to McAlester for the night and return to Savannah in the morning. Accordingly they took passage on a freight train and were carried to McAlester, the conductor treating the pass, when presented by Hughes, as authority to carry them. Plaintiff said he personally knew nothing of whether or not there was a hotel or other place to stop in Savannah and didn't look for one. They spent the night at a hotel or boarding house selected by Hughes, ate breakfast at a restaurant he selected and went to the depot to take a train back to Savannah. A freight train had been made up at North McAlester, two miles away, and it came along past the depot at McAlester at eight o'clock, but did not stop. Hughes spoke to the engineer or some one in the engine as it passed, and then told plaintiff they (Hughes and plaintiff) would get on that train. Hughes caught the train near the front end; then said to plaintiff; "Come on; it is safe." Plaintiff attempted to get on; but when he caught, or caught at, a grab-iron on the side of a car, the rocking of the train, which was running from five to ten miles an hour, according to diverse testimony, threw plaintiff off his balance, caused him to lose his hold of the grab-iron, and he fell under the train and received the injuries we have stated. Plaintiff testified the train seemed to be going pretty slow, and he thought he could catch it; that he asked Hughes if it was safe before trying to get on, because he (plaintiff) did not know at what speed the train was running, or whether it would be safe to attempt to catch it. He and Hughes had been waiting at the station since seven o'clock, and the defendant company afterward paid plaintiff *506 for that hour, which was the one when his day's work began. There was testimony that passes and orders like those Hughes was given for himself and plaintiff, were honored on freight trains as well as on passenger trains. Hughes so testified — said he had used such free passes for from three to five years on all kinds of trains; had never been given a book containing rules about the use of passes; had used them "on everything that came along" going to and coming from work, and was never instructed not to ride freight trains with such a pass. It should be stated that in an accident which occurred during plaintiff's first employment by defendant, his right arm was broken at the elbow and he was left crippled in that arm, so his use of it was not "very good." In his effort to clutch the grab-iron, he caught hold with his right hand, but failed to catch with his left; failed also to place his foot in the stirrup, and his hold by his right hand was jerked loose.
For convenience we have spoken of the Missouri, Kansas Texas Railway Company as the defendant company; but the actual defendant is Charles E. Schaff, who was receiver of the company and operating its lines.
The petition was in two paragraphs, of which the first was drawn on the supposition that the plaintiff was hurt while he was assisting defendant as a carrier engaged in interstate commerce, and hence the case was controlled by the Federal Employers' Liability Act. The second paragraph stated a cause of action based on the theory that plaintiff's work when he met with the injury, was in connection with defendant's intrastate business. The court instructed there could be no recovery on the second cause of action.
The only finding of negligence upon which the jury were authorized to return a verdict for plaintiff was that Hughes gave him a negligent order to get on the moving freight train. In addition to finding that averment had been proved, the jury were required to find the following facts: plaintiff at the time of the *507 injury was engaged in defendant's service, under the direction and control of Hughes; that Hughes was foreman over him at the time and had authority to direct the movements of plaintiff in going about his work and to and from it; Hughes was furnished with a pass for himself and one employee; plaintiff and defendant were, at the time, engaged in interstate commerce; in obedience to the order of Hughes, and in the scope of plaintiff's employment, he undertook to get on the train and was jerked loose from the grab-iron, caused to fall under the train and injured; that the order of Hughes, if given, constituted negligence; plaintiff's injuries were the direct result of such negligent order, and that plaintiff did not assume the risk of the hazard to which he was exposed.
Whether he assumed the hazard depended, the court instructed, on whether it was one ordinarily incident to the business and known and appreciated by plaintiff; but if plaintiff was not aware of the danger, and did not appreciate the risk of getting on moving freight trains, he did not assume the risk.
The court also instructed that if the jury found plaintiff was not engaged in defendant's business when hurt but for his own convenience had made the trip to McAlester, and when hurt was seeking transportation back to his place of employment, plaintiff assumed the risk of boarding the train, and the verdict must be for defendant.
A verdict was given for plaintiff, and his damages assessed at twenty-five thousand dollars. After judgment had been entered on the verdict, defendant took this appeal.
I. The assignment of error for first attention is that plaintiff made no case for the jury, because the only act of negligence the jury was required to find, namely, the order of Hughes for plaintiff to get on a *508 moving train, occurred when neither plaintiff nor Hughes was engaged in the business of defendant. If thisInjury on assignment is good, plaintiff cannot recover onWay to Work. either the Federal statute or at common law. According to the testimony of plaintiff himself, he was free to go where he pleased after the day's work was over and to select for himself a place to eat and sleep. Naturally he would defer, somewhat, to Hughes, his foreman, in choosing lodgings; but in doing so would not be acting under Hughes' authority as foreman, but simply under his influence. Defendant had neither agreed to pay plaintiff's personal expenses while in its service, nor had reserved any control over him in respect of his board and lodging. The custom is so general for employees of a railroad company when sent out for duty on the line, to live where they work, in some boarding house or hotel, or in "bunk cars" of the company, that we may presume it was incumbent on plaintiff and Hughes to stay over night in Savannah, if they could find a suitable place; that is, one of the kind commonly used by persons in similar employment. Therefore, unless it was reasonably necessary for them to go to McAlester to spend the night, they were not engaged in the work of the company while they were away; and the company is no more responsible for the accident to plaintiff than it would have been if they had gone to a dance at McAlester and the accident had happened during their return trip. The argument for plaintiff at this point leaves out of view the necessity of the trip, and takes for granted plaintiff and Hughes, whatever was their reason for going to McAlester, were acting in the scope of their employment when they started back after seven o'clock, the hour when they were supposed to commence work for the day. But this was not so if they left Savannah on an errand of their own. The duty of plaintiff to obey the orders of Hughes as foreman, was primarily to do so when at Savannah and at work on the semaphore; and Hughes would have authority over his movements at McAlester after seven o'clock in the morning, only in *509 the event plaintiff had been forced to go there in consequence of inability to procure accommodation for the night at Savannah. The only evidence on this question was the testimony of plaintiff himself that Hughes said there was no place to sleep in Savannah. This testimony having been received without objection, conduced to prove the necessity to hunt quarters elsewhere; and for aught that appears, McAlester was as accessible as any place. Such being the condition of affairs, the pertinent inquiry is not as to whether plaintiff and Hughes were within their employment while traveling to McAlester and while passing the night there; but whether they were engaged in defendant's service on the way back to their task and after the hour for them to resume work had arrived.
The question of the necessity of the trip was not as pointedly instructed upon as it could have been; but an instruction given by the court of its own motion, fairly presented it, in the absence of requests by the parties for more definite charges. The requests of plaintiff required the jury to find the command of Hughes was given "in the due performance of his duties;" but did not require them to find the existence of the only condition under which the command would have been given in the performance of Hughes' duty, namely, that the parties had gone to McAlester because they could find no place to stay over night in Savannah.
A refused request of defendant excluded a verdict for plaintiff if the jury found he "was required to provide and pay for his own board and lodging; had the right to select the place where he would board and lodge," and in the exercise of that right, went with Hughes to McAlester. Said instruction took no account of the possible necessity to go there; and as far as it had nay merit, was covered by the one we have summarized, given by the court of its own motion and denying recovery if the trip was taken by plaintiff for his own convenience and not as incident to his employment.
In view of the evidence to prove there was no place in Savannah where Hughes and plaintiff could spend *510 the night, we hold it was not shown beyond an inference to the contrary the parties were acting outside the scope of their duty to defendant when the accident happened.
The liability of an employer for injury to a workman in his service, where the workman is absent from the place of his task, depends, in instances like the present, on whether the absence was voluntary on the part of the workman and for some purpose of his own, or for some reason, was involuntary and compelled; and one of the reasons may be the conditions at the spot where his task lay.
Two contrasted cases present this proposition clearly. In one a miner had been killed by an exposed and charged electric wire running along a passage in the mine, while the deceased was returning at noon from a social call on a fellow-workman. The defendant was held not to be liable for the accident on the theory that the deceased was a servant engaged in the master's work when killed; the court, citing in support of the proposition, 1 Shear. Red., Negligence, sec. 190; Wright v. Rawson,
In the other case an employee was hurt by an explosion while he was eating lunch on a dry knoll some distance from where he had been at work. According to the habit of the workmen and as the employer knew, he had gone to the knoll to eat because the part of the grounds where he was working was marshy. He was allowed to recover. [Thomas v. Railroad,
In another case very similar to this one, an electrical engineer had gone out on a line of the defendant railroad company to work, and in the course of his duty was due the next day at the station where the headquarters of the department were, to receive further orders. He desired to get in the previous evening so he might obtain a night's rest, and to accommodate him the train conductor at the station where he had been working, telegraphed the conductor of a freight train which would pass the station, to "slow down" there so plaintiff could get aboard and be carried to headquarters. The conductor did not cause the train to "slow down;" and in endeavoring to catch the side of a car as it passed, the plaintiff fell under it and an arm and leg were cut off. A contested point therein, as here, was whether the plaintiff was engaged in interstate business when hurt; the railroad company arguing that he was not, because, at the time, he was not engaged in any work at all for the company. In disposing of the proposition, the court declared it was the plaintiff's duty to get back to headquarters, and until his duties, begun in the morning, were concluded at night, he must be regarded as being engaged in interstate commerce; meaning, of course, that during the work day he was in the company's service, and as its trains were engaged in interstate transportation, the plaintiff was engaged in interstate commerce. The point of the plaintiff's freedom of action at the close of the day was pressed; but the court rejected it because, as he was under the duty to return to headquarters, he was still occupied for the company when he attempted to return by the freight train. [Dumphy v. Railroad,
That an employee, on his way to and from his work, and using in his movements the premises or an instrumentality of the master, which he is authorized to use, is at the time in the master's service and may recover, *512 if hurt by any negligible defect in the property, on the ground of a breach of the master's duty to furnish a safe place or appliance, is a doctrine accepted by many courts. But if, when hurt, he is going away from his task on his own business, or returning to it after leaving it on his own business, and not form some kind of compulsion, the same courts rule the other way. There is discord, real or apparent, in the decisions, and the cases pro and con are collected in notes to King v. Mondota Coal Co., L.R.A. 1916 F., 1220; and to Taylor v. Bush Sons Co., 12 L.R.A. [N.S.] 853; and see Hartman v. Steamship Co., 244 F. 567.
The court of last resort, in cases of injuries to employees of carriers engaged in interstate commerce, has declared on the subject as follows:
"In leaving the carrier's yard at the close of his day's work, the deceased was but discharging a duty of his employment. See North Carolina R.R. Co. v. Zachary,
The same principle of liability will govern if the employee was forced away from the locality of his task and to get back there was directed by his superior to use an instrumentality of the employer, when the order to do so was negligent by reason of the instrumentality being dangerous to use, either from a defect or its operation. If Hughes and plaintiff were in service, as determined by the test we have pointed out, when the former directed plaintiff to board the moving train, then the case is like one heretofore decided by this court, where an employer was held answerable to an employee injured while he was obeying a negligent order of his *513
foreman to board a train. [Foster v. Railroad,
II. We have to determine next whether plaintiff was engaged, when hurt, in a task so closely connected with interstate commerce as to bring him within the provisions of the Federal Employers' Liability Act (Act Cong. approved April 22, 1908; 35 U.S. Stat. at Large, p. 65, c. 149, as amended by actInterstate approved April 5, 1910). The statute makes a commonCommerce. carrier "liable in damages to any person suffering injury while he is employed by such carrier in such commerce;" that is, in commerce between any of the several states or territories, as provided in the first lines of the act. The meaning of the words "while he is engaged by such carrier in such commerce" controls the decision of the question whether State law or the Federal act determines, in a particular case, the liability of the carrier to an injured employee. A mass of adjudications have been made on the subject by State courts of last resort and Federal courts of intermediate resort; and some of them favor the view that plaintiff was injured while employed by defendant in interstate commerce. [Grow v. Oregon Short Line Ry. Co., 44 Utah, 160; Saunders v. Railroad,
"Coming to apply the test to the case in hand, it is plain that Shanks was not employed in interstate transportation, or in repairing or keeping in usable condition a roadbed, bridge, engine, car or other instrument then in use in such transportation. What he was doing was altering the location of a fixture in a machine shop. The connection between the fixture and interstate transportation was remote at best, for the only function of the fixture was to communicate power to machinery used in repairing parts of engines some of which were used in such transportation."
The like ruling was made where an employee lost his life in switching coal from a storage track to a coal shed, thence to be taken to bins and chutes and used, as occasion required, on locomotives engaged in both kinds of commerce. The court said there was no close or direct relation to interstate transportation in taking the coal to the chutes; that the employee was doing no more than putting the supply in a convenient place for use when it was required. [C., B. Q. Ry. Co. v. Harrington,
The national courts in construing the act in question, and in order to determine the status of an employee injured when employed upon an instrumentality which, as yet, has not been put into use in interstate business, but is intended to be, have drawn a distinction between construction work and repair work, and hold a workman engaged in repairs on an appliance employed in interstate traffic is within the provisions of the act; whereas one helping to make a new appliance to be thus used in the future is not so engaged. This is the rule formulated in an exhaustive annotation on the question, wherein many cases are cited in its support. [Seaboard A.L. Railroad *518
Co. v. Horton, L.R.A. 1915 C. note f.p. 63.] It is true, as said in a well reasoned case, the distinction between repairs and construction work must not be too finely drawn; the particular matter the court then had under advisement being whether an employee killed in putting in new cross-arms on old poles to carry electric wires used in telegraphing and signalling, was engaged in interstate commerce. The court held the work was in the nature of repairs and, therefore, the case fell within the Federal act. [Ross v. Sheldon,
Neither the semaphore plaintiff was assisting to build, nor the new depot was yet in use in any kind of commerce; for the old semaphore and depot had not been discarded. In fact the new ones were incomplete and the semaphore appears to have been far from completion. As suggested by Judge SANBORN, in the Bravis case, neither had ever been used and it is possible neither ever would be used; for some mishap might destroy them.
The substantive rules of tort liability, as fixed by the adjudications in this State, differ materially from those which obtain in cases falling under the Federal statute; particularly in regard to the doctrines of contributory negligence and assumption of the risk. Under the law of the State, contributory negligence on the part of an injured party is usually a defense; whereas under the Federal statute it goes only to reduce damages; and assumption of the risk is given a wider scope by the national courts than is allowed in Missouri. The Supreme Court of the United States has held that in a case within the act of Congress, the Federal law "is exclusive and supersedes State laws upon the subject." [Chicago Ry. Co. v. Wright,
Plaintiff's counsel insists defendant should not be heard to say no recovery can be had under the Federal act, because the court, at defendant's request, instructed against a verdict on the second count, which declared on a common-law liability. Maybe there would be force to this contention if defendant had insisted below the question of its liability was governed by the Federal law; but the position taken by defendant was that there was no case under either law; and so it requested a charge that plaintiff was not entitled to recover on the first count, and another charge that he was not entitled to recover under the second count. The court refused the first request and gave the second — erroneously, we think.
III. Too much attention was given by both sides to the free pass Hughes had for himself and plaintiff. The defendant contends plaintiff was a trespasser in attempting to board a freight train, because the pass gave no right to ride on freight trains, and under the rules of the company it could not beFree Pass. used in that way. Neither plaintiff nor Hughes knew anything about the rules, and plaintiff did not know anything about the terms of the pass, and if Hughes' testimony is true, he did not; for he said similar passes always had been honored by the conductors of freight trains. In fact, this very one was honored on the trip from Savannah to McAlester. There is no merit in the contention that plaintiff was attempting to trespass.
The free pass was admissible as an item of evidence to prove plaintiff was under Hughes' authority, inasmuch as it read in favor of Hughes and "1 man," and had been turned over to him. Being in Hughes' custody all the time, so that if separated from him plaintiff would have been deprived of its benefit, and maybe without means of any kind to take him to Savannah, it bore upon the issue of plaintiff's contributory negligence and assumption of the risk. It was treated in the second instruction given for plaintiff in a manner to magnify, in the eyes of the jury, its importance, and confuse them *520
regarding the issues to which it was relevant. Wherefore the instruction was a comment on one part of the evidence and adapted to give the impression that the possession of Hughes made his order to plaintiff a negligent one. As we have said, the pass and his custody of it had a bearing on his authority to give the order, and on whether or not plaintiff was justified in obeying it; but did not have a bearing on the issue of the character of the order. That matter depended on the speed of the train, the experience of plaintiff, his physical condition, and the like facts. The jury's attention should not have been fixed on the pass to the degree it was in an instruction submitting the issues of whether the order of Hughes was negligently given and whether he ought to have known it was. [Smith v. Woodmen of the World,
If we are right in our judgment that the case does not come within the Federal act, the issues of contributory negligence and assumption of the risk will be governed by the rules of law touching those subjects that prevail in this State.
The judgment is reversed and the cause remanded. Blair, P.J., and Woodson, J., concur; Graves, J., dissents in separate opinion.
Dissenting Opinion
I dissent in this case, because the plaintiff's evidence (in my judgment) fails to make a case either at common law, or under the Federal Act. I agree with my learned brother in his reasoning as to there being no showing of liability under the Federal Act. But I am of opinion that neither Hughes nor plaintiff was about the master's business at the time to the accident. The evidence as to their reason for the trip to McAlester is entirely too shadowy to form the basis of liability. The necessity of such a trip is not sufficiently shown. It is highly improbable that these two men could not have found food and lodging at or *521 near their place of work. At least it is clear that plaintiff made no effort so to do, and was in no position to show necessity for his trip.
Other suggestions might be made, but these will suffice. I therefore dissent.
