Kepner v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co.

15 S.W.2d 825, 322 Mo. 299, 65 A.L.R. 599, 1929 Mo. LEXIS 617

• Court: Supreme Court of Missouri
• Decided: March 27, 1929
• Status: Published

Opinions

FRANK, J.

This is an action, under the Federal Employers’ Liability Act, for personal injuries sustained by plaintiff while adjusting a sand pipe on a turntable in the repair yards of defendant at Beech Grove, Indiana. Trial to a jury resulted in a verdict for plaintiff in the sum of $50,000, which upon remittitur was reduced to $25,000, for which sum judgment was entered, and defendant appealed.

Defendant is a railroad corporation and at the time in question was an interstate carrier operating its line of railroad through the States of Indiana, Ohio, Illinois and Michigan. It maintained its repair yards and shops at Beech Grove, Indiana. These shops consisted of a number of buildings in which defendant’s engines, cars and other equipment were repaired. Yarious switches and tracks were maintained in the repair yards for the convenient handling of the engines and cars brought there for repairs, and for the purpose of conveying such engines and cars into and' out of the repair shops. Among the various shops maintained in the repair yards was one for the repair of locomotives only. The turntable upon which plaintiff was injured, was located in front of this locomotive repair shop. The¡ engine storage yard is located about two hundred yards west of the turntable. Locomotives coming to the shop for repairs are shipped as dead freight to the engine storage yard, and from there conveyed by a yard switch engine over the turntable and into the repair shop. Plaintiff and defendant’s witness Jones operated this yard switch engine. The turntable was used for conveying all engines into the repair shop. In this connection, witness Jones testified:

“Q. And your engine, the engine that you and Mr. Kepner worked on, would bring them from the yards into the shop ? A. Yes, that was the job we had to do.

“Q. You used the turntable in doing that? A. Yes, on every engine.

“Q. On every engine? A. Yes, if we didn’t have to turn the engine we had to put the tank away.

“Q. That was what the turntable was for? A. Yes, sir.”

On this same subject, Rothaas, defendant’s shop inspector, testified:

“Q. And the turntable is for what purpose ? A. For turning locomotives or any equipment going into our shops which needs turning.

“Q. Now, is it used for any other purpose than that which you have just testified? A. No sir.”

Prior to July 24, 1923, the day on which plaintiff was injured, he had been in defendant’s employ for about five years in the capacity of switchman to assist in the operation of the yard switch engine for the purpose of conveying disabled engines and other equipment from points in the yard to and over the turntable into the repair shop and o'ut again after being repaired.

The turntable was located in a circular pit with a track around the upper part of its outer edge. The turntable was on an iron frame supported at each end by steel wheels which ran on the track referred to. There was a standard-gauge railroad track on this table. When an engine was placed on this track the table was turned in order to connect the turntable track with another track leading into the repair shop, thus permitting the engine to be run into the shop and out again after being repaired. The table was turned by means of an electric motor. This motor and the gears which turned the table were covered by a wooden box which extended a few inches above the table. An iron pipe was fastened to the table directly above the wheels, through which sand was poured on the track upon which the table moved, to prevent the wheels from slipping thereon. If this sand pipe got out of line, it was plaintiff’s duty to adjust it. '

Ftor some time before plaintiff was injured the boards on the turntable platform covering the gears of the, machinery which turned the table had been missing. On the Saturday previous to plaintiff’s injuries he reported this defect to defendant’s foreman, whose business it was to make the repairs in question. The latter promised to make the repairs in a day or two. Plaintiff relied upon this promise and continued in his work. On the following Tuesday he had started the turntable for the purpose of sanding the tracks, which was his regular duty. In sanding the tracks, he observed that the sand did not hit the rail and that the sand pipe was out of line. lie reached for the lever to shut off the power with one hand, having his wrench in the other" hand, and as he did so his foot slipped into the hole in the box covering the gears, and his leg was crushed in the gears in such a way that it had to be amputated. In his fall, his back was twisted and wrenched, causing permanent injuries to the lower lumbar region of the spine.

Other pertinent facts will be stated in course of the opinion.

This action is brought under the Federal Employers’ Liability Act. [Chap. 149, 35 Stat. 65, U. S. Comp. Stat. Supp. 1919, p. 1322.] In' order to sustain a recovery under this act, plaintiff must show that at the time of his injury he was engaged jn interstate transportation or in a work so closely related to it as to be practically a part of it. [Shanks v. Delaware & Lackawanna Railroad Co., 239 U. S. 556, 558, 601 Law Ed. 436, L. R. A. 1916-C, 797.] The character of plaintiff’s employment generally, or its character on the day of and prior to his injury, is not determinative of this question. The true test is whether or not he was engaged in interstate transportation within the meaning of the act at the very time of his injury.

I. Appellant challenges plaintiff’s right to recover under the Federal Employers’ Liability Act. The burden is on plaintiff to show that he was employed in interstate commerce within the meaning of such act at the time he was injured.

Plaintiff testified’ on both direct and cross-examination that interstate engines passed over the turntable on their way into and out of the repair shop. Defendant, however, insists that this testimony was not the statement of a fact, but the eXpression of a conclusion based upon an erroneous conception of the law by which an interstate character should be determined, and is, therefore, devoid of probative value and no evidence of the interstate character of the engines. It is then insisted that as plaintiff’s statement was the only testimony on that subject, there was no evidence that the turntable was a permanent instrumentality of interstate commerce.

We do not so read the record. The evidence shows that disabled engines were brought from other states into the State of Indiana and to the shops at Beech Grove for repairs. Defendant does not dispute this fact, but contends that a disabled engine while being hauled as dead freight from one state to another was not, at the time of such movement, in commercial use or being used as an instrumentality in the movement of an interstate train, and for these reasons such movement was not a movement in interstate commerce.

There is no merit in this contention. The movement of the engines from one state to another, was a movement in interstate commerce regardless of the purpose for which they were being moved. It has been held that the hauling of empty cars from one state to another is interstate commerce. [Nor. Car. Railroad Co. v. Zachary, 232 U. S. 259, 260.]

In C. R. I. Ry. Co. v. Wright, 239 U. S. 550, a like question is disposed of thus:

“It is entirely clear that taking the road engine from Phillipsburg, Kansas, to Council Bluffs, Iowa, was an act of interstate commerce, and that the intestate, while participating in that act, was employed in such commerce. That the engine was not in commercial use but merely on the way to a repair shop is immaterial. It was being taken from one State to another and this was the true test of whether it was moving in interstate commerce. [See North Carolina R. R. v. Zachary, 232 U. S. 248, 259.]”

There are numerous other cases to the same effect. We rule this contention against appellant.

But appellant insists that although the movement of the engines from one state to another was interstate commerce, such interstate movement terminated when the engines reached the yards at Beech Grove, and their subsequent removal to the shops was local and not interstate. Kozimko v. Hines, 268 Fed. 507; Schauffele v. Director Gen., 276 Fed. 115; Lehigh Valley v. Barlow, 244 U. S. 183; C. B. & Q. Railroad Co. v. Harrington, 241 U. S. 377, and Bishop v. Delano, 265 Fed. 263, are cited in support of this.

The cases cited do not support appellant’s contention. Their facts differ materially from the facts in this case.

In the Harrington case the facts were that the plaintiff was a member of one of defendant’s switching crews, and at the time of his death was engaged in switching coal belonging to defendant, and which had been standing on a storage track for some time, to the coal shed, where it was to be placed in bins or chutes and supplied as needed to all class of engines both interstate and intrastate. Relative to the movement of the coal to the storage track, the court said,

“With the movement of the coal to the storage tracks, however, we are not concerned; that movement had long since ended, as it is admitted that the coal was owned by the Company and ‘had been in storage in its storage tracks for a week or more prior to the time it was being switched into the coal chutes on the morning of the accident.’ ”

As we read the Harrington case, the court held that the interstate movement of the coal ended when it reached the storage track, because the coal was placed in storage on the storage track. If the destination of the coal had been the chute, and it had been placed in the yards in order that a switch engine could take it to the chute, a different question would have been presented.

The facts in the Barlow case, cited by appellant, are almost identical with the facts in the Harrington case. In the Barlow case the court cited and followed the Harrington case.

In the present action there is no evidence that engines coming from other states to Beech Grove for repairs were placed in storage upon their arrival at the yards. On the contrary the fair inference deducible from the evidence is that the only reason or purpose for placing the engines on the track in the engine yard was to expedite their further journey into the repair shop by use of a yard switch engine. There is no evidence that the engines remained in the yards for any length of time. Defendant’s general shop inspector was asked to explain in detail how engines coming to the repair shop were handled. He testified that the engines were shipped as dead freight to the storage yard and that the next step was to convey them to the repair shop by means of a switch engine.

The purpose of the transportation being the repair of the engines, their ultimate destination was necessarily the repair shop, the only place where the repairs could be made. If they had not been temporarily halted in the yards, but had proceeded to and over the turntable and into the repair shop, it could not then be successfully contended that the interstate movement ended before the engines reached the repair shop. This being true, the purpose for which the engines were placed on the track in the yards is important. Had they been stored there, to remain an (indefinite length of time, their interstate movement would have ended upon their arrival in the yards, but such was not the situation. The halting of the engines in the yards and their conveyance thereafter into the repair shop by use of a switch engine was nothing more than a plan adopted by defendant for the convenient handling of the engines after they reached the yards, which did not change the destination of the engines or render their movement from the yards to the shop local and not interstate.

A kindred question was presented to the U. S. Supreme Court in St. Louis, etc., Railroad Co. v. Seale, 229 U. S. 156. The question there discussed was whether or not after an interstate train arrived in the yard at its terminal, the movement thereafter of various cars in the train to certain points, or tracks in the yard was interstate or intrastate. In disposing of that question the court said:

“The interstate transportation was not ended merely because that yard was a terminal for that train, nor even if the cars were not going- to points beyond. Whether they were going further or were to stop at that station, it still was necessary that the train be broken up and the cars taken to the appropriate tracks for making up outgoing trains or for unloading or delivering freight, and this was as much a part of the interstate transportation as was the movement across the state line. [McNeill v. Southern Railway Co., 202 U. S. 543, 559; see, also Johnson v. Southern Pacific Company, 196 U. S. 1, 21.]”

The turntable was permanently used for the taking of engines and other equipment into and out of the repair shop. Defendant’s witness Jones, who operated the switch engine, testified that the turntable was used on every engine. Rothaas, defendant’s general shop inspector, testified that the turntable was used for turning locomotives and other equipment going into the repair shop, and that it was not used for any other purpose. As the turntable was permanently used for the purposes aforesaid, the interstate movement of engines over it into the repair shop characterized the table as a permanent instrumentality of interstate commerce (Pederson v. Railroad, 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914-C, 153), and as plaintiff was actually working upon such instrumentality at the time he was injured, his case is within the Federal Employers’ Liability Act.

II. Complaint is made of the only instruction given for plaintiff. That part of the instruction criticised reads: “that if you find and believe from the evidence that at the time plaintiff was injured ... he was engaged in repairing and adjusting a san(j pjpe ^011 a turntable of defendant, and if you further find that said turntable and sand pipe were used by defendant in moving and turning engines used in interstate commerce,” etc.

The criticism is (1), that the instruction in effect told the jury that if the engines in question, before coming to the repair shop, had been used in interstate commerce, they were for that reason still interstate engines and their passage over the turntable characterized it as an instrumentality of interstate commerce, and (2) that it did not inform the jury what facts would constitute the table an instrumentality of interstate commerce.

Appellant admits that engines were brought from other states to the repair shop at Beech Grove. The movement of the engines from one state to another was, as a matter of law, a movement in interstate commerce. [Railway v. Wright, 239 U. S. 550; Railroad v. Zachary, 232 U. S. 259, 260.] There is no dispute about how the engines were handled after reaching the yards at Beech Grove. In this situation, the instruction, if erroneous, was not prejudicial.

III. We gather from the motion to dismiss plaintiff’s cause of action filed by defendant that defendant obtained an injunction in the State of Indiana prohibiting plaintiff from further proceeding in this cause. The motion to dismiss being overruie¿) defendant then set forth equivalent facts in its answer. Upon the trial the defendant sought to introduce the records of the Indiana court to that effect, the court refusing to admit such records. Thereupon defendant made an offer of proof to that effect, which offer the court rejected. It complains of the action of the trial court in that regard because, in violation of the Federal Constitution, full faith and credit was not accorded to the judgment of a sister state. Very few cases haA^e passed on this question and the decisions are not uniform. We think the better rule supports the action of the trial court in this regard. [Frye v. Railroad, 195 N. W. 629 (certiorari denied by U. S. Supreme Court, 44 Sup. Ct. 231); Shaw v. Railroad, 282 S. W. 416; State ex rel. Bossung v. Court, 140 Minn. 494, 168 N. W. 589, 1 A. L. R. 145; Nichols & Shepard Co. v. Wheeler, 150 Ky. 169, 150 S. W. 33.] The contention is ruled against defendant.

IV. It is contended that plaintiff assumed the risk of injury, (1) because it was imminent and known to him, and (2) because he continued to work and was injured after the expiration -of the time in which the repairs had been promised.

The rule in this regard is tersely stated in Seaboard Air Line v. Horton, 239 U. S. 595, as follows:

“If, however, there be a promise of reparation, then during such time as may be reasonably required for its performance or until the particular time specified for its performance, the employee relying upon the promise does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man under the circumstances would rely upon such promise.”

There was a promise to repair in this case. Plaintiff knew that some of the boards' on the box covering the gear Avere missing and so notified defendant’s foreman on Saturday previous to his injury on Tuesday. The foreman promised to make the repairs in a day or two. Plaintiff had a right to rely on the promise to repair and continue to work during such time as might be reasonably required to make the promised repairs, unless the danger in so doing Avas imminent. The promise was made on Saturday and the injury occurred on Tuesday, Sunday, a non-working day intervened. We cannot say as a matter of law that a reasonable time in which the repairs could have been made had expired before plaintiff was injured. This being true, plaintiff had the right to continue in his work, urn less the danger of working on the table near the uncovered gears was so obvious and imminent as to threaten immediate injury. Plaintiff’s duties did not require him to work on the gears or the covering. The danger to plaintiff in continuing work was that he might become engrossed in the performance of his duties and unwarily step into the gears, or come in contact with them by either, slipping or falling on them while in the performance of his duties. These dangers were not so obvious and immediately threatening that we can say, as a matter of law, that it was imprudent for plaintiff to continue in his work pending defendant’s promise to repair, and that he assumed the risk of injury in so doing. ¥e rule this contention against appellant.

V. The next and last contention is that the verdict is excessive. The evidence in that regard shows the amputation of the left leg four inches below the hip. Injuries to the back and spine were álso shown. The surfaces between the third, fourth an¿ fifth i-mfibar vertebrae were found irregular and in a fuzzy condition. A portion of the bone has been absorbed. The vertebrae do not articulate smoothly. These findings denote chronic inflammatory changes in the spine which render movement, whether from side to side or front to back, painful. An inflammatory condition of the spine obtained along the spinal column as well as an inflammatory condition of the hip joints and sacroiliac joint, known as arthritis. There is also limitation of motion in the spine which is more or less rigid and stiff, instead of flexible, approaching a state of ankylosis. X-ray pictures tended’ to show all of this. It was the opinion of the doctors that the condition of the spine is not only permanent, but progressive, and that it will be impossible for plaintiff to wear an artificial limb because of the condition of the lower spine and because of the amputation of the limb just below the hip. Plaintiff was thirty-nine years of age at the time of the injury and was earning $250 a month. Under the American Table of Mortality his expectancy of life was approximately twenty-eight years. From the time of the injury to the time of trial, nearly a year elapsing, plaintiff had been unable to earn anything and testified that his suffering had been and was very painful.

Considering the serious and permanent character of plaintiff’s injuries, the physical pain and suffering he endured, his mental suffering resulting from physical disability and the permanent impairment of his earning capacity, we regard a recovery of $25,000 reasonable. That amount received the sanction of the trial court, and we cannot say that the amount recovered is so out of proportion to the injury sustained as to indicate passion and prejudice on the part of the jury, or warrant opr disturbing it,

Finding no reversible error in the record, the judgment is affirmed.

White, C. J., and Gantt, Atwood and Ragland, JJ., concur; Blair, J., dissents; Walker, J., dissents in a separate opinion.