Gulf S.I.R. Co. v. Curtis

113 So. 195, 113 So. 135, 146 Miss. 630, 1927 Miss. LEXIS 269

• Court: Mississippi Supreme Court
• Decided: March 7, 1927
• Docket: No. 26293.
• Status: Published

Opinion

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a judgment for damages for the death of the appellee’s intestate, alleged to have been caused by the negligence of the appellant.

The court below instructed the jury in accordance with the state prima-facie evidence statute; and one of the appellant’s contentions there was, and its only contention here is, that this statute has no application, for the reason that the appellee’s intestate was engaged in interstate commerce when injured, and, consequently, the case is governed by the Federal Employers ’ Liability Act (U. S. Comp. St., sections 8657-8665). The case will be stated in so far only as is necessary for a decision of that question.

The Gulf & Ship Island Railroad and the New Orleans Great Northern Railroad are common carriers, engaged in both intrastate and interstate commerce, and have a physical connection at Columbia, Miss., where they deliver cars to each other under an interchange arrangement which requires the former to deliver to the latter “ten box cars and five open cars per day.’-’ Under a custom of railroads to expedite the return of cars to the road by which they are owned, the cars which each of these roads delivered to the other were cars owned by other railroads, and the cars received by each were usually used by it for interstate shipments, the cars received by the New Orleans Great Northern Railroad being usually carried by it to Foxworth, a station on its road in Mississippi, or to Bogalonsa, La., for loading.

George D. Curtis, the appellee’s intestate, was a brakeman on one of the appellant’s extra trains, which ran north daily from Columbia to Mendenhall, Miss., and returned. The train was made up for its trip north at Columbia, and for its trip south at Mendenhall, Miss. On November 30, 1925, the conductor of this train was ordered by the proper railroad official to bring thirty-four empty freight cars from Mendenhall to Columbia. He complied with this order, selecting the cars himself, and they constituted the whole of the train other than the engine and caboose. The conductor’s duty on arriving at Mendenhall, and that which he discharged on the occasion in question, was to place the cars on the track designated therefor, and to report to the station agent the arrival of the train and the cars composing it. Cur tis was killed by falling from one of the cars of the train when it was entering the railroad yard at Columbia.

It was the duty of the appellant’s station agent, at Columbia, on the night preceding the day of delivery of cars to the New Orleans Great Northern Railroad, to select the cars to be so delivered, and to leave a list thereof where it could be obtained early the next morning by the appellant’s switching crew, whose duty it was then to take the list and deliver the cars to the New Orleans Great Northern Railroad. * After receiving the report of the conductor of the train, from which Curtis fell and was killed, this agent selected therefrom nineteen cars, and placed the list where it could be found the next morning by the switching crew, and, they delivered the cars the next morning’ to the New Orleans Great Northern Railroad. The bringing of these cars from Mendenhall to Columbia was necessary in order for the -Gulf & Ship Island Railroad to comply with its obligation to deliver cars to the New Orleans Great Northern Railroad the next day.

The hauling of an empty freight car from one state to another is interstate commerce, and the interstate character of such a car begins when, and not until, it has been designated therefor, and has begun to move for the purpose of being put into a train of the cars, or attached to an engine, that would carry it forward on its journey. Leaving out of view the fact that the cars here in question might not have been used by the New Orleans Great Northern Railroad in interstate commerce, under the facts here in evidence their use in such commerce did not begin prior to the time when the appellant’s switching crew commenced to move them for delivery to the New Orleans Great Northern Railroad pursuant to the order of the appellant’s station agent so to do.

Affirmed.