Opinion
No. 34028.
February 5, 1940.
1. MASTER AND SERVANT.
In action by section hand for injuries sustained while loading defective main line rails onto a flatcar, evidence did not establish that the employment was in "interstate transportation" or work so closely related thereto as to be a part thereof as to preclude recovery on ground of assumption of risk because the Federal Employers' Liability Act applied (Federal Employers' Liability Act, 45 U.S.C.A., secs. 51-59).
2. MASTER AND SERVANT.
If the pleadings are silent regarding character of employment, whether in interstate or intrastate commerce, the presumption is that the employment was within the state and that the employee was engaged in intrastate commerce.
3. MASTER AND SERVANT.
To bring an employee's action for injuries within Federal Liability Act, pleading must state a case coming under federal liability, but if employee alleges liability under a state law, the burden is upon him to sustain the allegation (Federal Employers' Liability Act, 45 U.S.C.A., secs. 51-59).
4. MASTER AND SERVANT.
Under Mississippi law, if section foreman instructed section hand to do work and told section hand that he would lose his job if he did not do what he was told to do, the foreman's direction would relieve the section hand from any assumption of risk of the master's negligence.
APPEAL from the circuit court of Lee county; HON. CLAUDE F. CLAYTON, Judge.
Adams Long, of Tupelo, for appellant.
There are several well-settled principles of law that govern this case, none of which are subject to question, and all of them have been repeatedly announced by the United States Supreme Court and other courts of the land.
The first is that in order for any plaintiff's case to be governed by the Federal Employers Liability Act and the decisions of the national court with respect thereto and not to be considered and governed by the laws of the State in which the accident occurred, it must affirmatively appear from the record that the carrier itself was a carrier of goods and was engaged at all times in interstate commerce.
It does not matter that it may at the same time be engaged in intrastate commerce but that the carrier at all times must be engaged in interstate commerce and that at the time of the injury the employee must also then and there be engaged in a task, which, from its nature, is a part of interstate commerce.
2 Roberts, Federal Liability of Carriers (2 Ed.), par. 702, p. 1310.
It is also well settled that it does not make any difference what the usual duties of the employee are nor what he had been doing just prior to the accident, nor what he expected to do after the accident. His status at the time of the accident as to being in interstate or intrastate commerce is governed entirely by the specific and separate task which the employee was engaged in at the time of the accident.
I.C.R.R. Co. v. Behrens, 58 L.Ed. 1051; Chicago, etc., R.R. Co. v. Harrington, 60 L.Ed. 941; Erie R.R. Co. v. Welsh, 61 L.Ed. 319; Chicago, etc., R.R. Co. v. Bolle, 76 L.Ed. 173.
The criterion which determines whether or not the employment is interstate or not is as follows: "Was the employee at the time of the injury engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?"
The above-quoted principle, after its first enunciation by the Supreme Court of the United States, has been repeatedly referred to and the word "transportation" has been singled out and elaborated upon and made the key word of this principle, as distinguished from "commerce," so that any act in which an employee is engaged must be in furtherance of transportation as distinguished from the many other activities in and about a railroad yard.
Pedersen v. Delaware, etc., R.R. Co., 57 L.Ed. 1125; Del., etc., R.R. Co. v. Yurkonis, 59 L.Ed. 1397; Shanks v. Del., etc., R.R. Co., 60 L.Ed. 436; Chicago, etc., R.R. Co. v. Harrington, 60 L.Ed. 941; N.Y.C.R.R. Co. v. White, 61 L.Ed. 667; Accident Commission v. Davis, 66 L.Ed. 888; Chicago N.W.R. Co. v. Bolle, 76 L.Ed. 173; N.Y., N.H. H.R.R. Co. v. Bezue, 76 L.Ed. 370.
The burden of proof where the plaintiff bases his cause of action on the Federal Employers Liability Act is upon the plaintiff to show sufficient facts to bring the accident within the terms of the Federal Employers Liability Act, and the contrary is true that where the plaintiff's action is based upon State's statutes or laws and the defendant depends upon or contends that the Federal Employers Liability Act applies that the burden then is upon the defendant to prove facts sufficient to bring the transaction within the terms of the Federal Employers Liability Act.
2 Roberts on Carriers Liability, etc. (2 Ed.), par. 1018, p. 1960; Pa. R.R. Co. v. Knight, 41 L.Ed. 1136; Pittsburgh C.C. St. Louis R.R. Co. v. Parker, 19 A.L.R. 759.
The party who asserts the affirmative of an issue has the burden of proving the facts relative thereto.
20 Am. Jur. 138-145, paragraphs 135-140; Cothcart v. Robinson, 8 L.Ed. 120; McCoy v. Rhodes, 13 L.Ed. 634; Roach v. Summers, 22 L.Ed. 252; Seitz v. Mitchell, 24 L.Ed. 179; U.S. v. Denver, etc., R.R. Co., 48 L.Ed. 106.
Neither the trial court or the Supreme Court will presume or take judicial knowledge of any facts to bring the case within the terms of the Federal Employers Liability Act, and unless sufficient facts are brought to the attention of the court through the testimony to bring the transaction within the terms of the Federal Employers Liability Act the trial court and all the courts through which the case proceeds will presume that the employment is intrastate instead of interstate in its nature.
2 Roberts, Federal Liability of Carriers (2 Ed.), par. 1017; Osborne v. Gray, 60 L.Ed. 865; Johnson v. So. Pac. R.R. Co., 49 A.L.R. 1323.
In the Shanks case, in 60 L.Ed. at page 436, the Supreme Court held that an employee in a machine shop, belonging to a railroad engaged in both interstate and intrastate transportation, hurt by some of the machinery therein, was not engaged in interstate commerce.
Erie R.R. Co. v. Welsh, 61 L.Ed. 319; Minn., etc., R.R. Co. v. Winters, 61 L.Ed. 358; Lehigh Valley R.R. Co. v. Barlow, 61 L.Ed. 1070; Industrial Accident Com. v. Davis, 66 L.Ed. 888; N.Y., etc., R.R. Co. v. Bezue, 72 L.Ed. 370.
We invite the court's attention to the following authorities, which we think hold with us, and are absolutely in point.
2 Roberts, Federal Liability of Carriers (2 Ed.), paragraphs 779, 780, pages 1493-1499; Galveston H. S.A. Ry. Co. v. Brewer, 2 S.W.2d 320; Dupuis v. La., 99 So. 709, 69 L.Ed. 1152; Sidell v. St. Louis-San Francisco Ry. Co., 18 S.W.2d 126; Y. M.V.R.R. Co. v. Houston, 75 So. 690, 114 Miss. 888; So. Ry. Co. v. Maxwell, 117 Miss. 62; N.O. N.E.R.R. Co. v. Beard, 90 So. 727, 128 Miss. 172; G.M. N.R.R. Co. v. Myer, 110 So. 444, 145 Miss. 555.
We respectfully submit that the lower court erred in granting the peremptory instructions for the defendant and in holding that the doctrine of assumption of risk applied in this cause because it was an interstate transaction.
The only way that a variance between the proof and the charges of the declaration can be taken advantage of is by objection to the testimony when offered and that objection then must be on the grounds that it varies from the declaration.
True-Hixon Lbr. Co. v. McDonough, 123 So. 855, 154 Miss. 720; Cramer v. Strain, 145 So. 244, 169 Miss. 344; La. Oil Corp. v. Davis, 158 So. 792, 172 Miss. 126; Fatheree v. Griffin, 121 So. 119, 153 Miss. 570; Linten v. Skinners, 84 So. 800, 122 Miss. 613; Ala., etc., R.R. Co., v. Searles, 16 So. 255, 71 Miss. 744.
C.R. Bolton, of Tupelo, D.W. Houston, Sr. and Jr., of Aberdeen, and J.W. Jamison, of St. Louis, Mo., for appellees.
It is our position that the case is governed by the Federal Employers Liability Act because the appellant was an employee engaged in such service of appellee as would bring him under the act, and for this reason it is our view that the law as contained in the Federal Act is the law by which this case is to be considered, but yet we say that under the pleadings and facts in this case, the action of the court below in giving a peremptory instruction was correct, whether the federal law or the Mississippi law be applied as the right rule.
In the Pedersen case (Pedersen v. D.L. W.R. Company, 57 L.Ed. 1125), the Supreme Court of the United States laid down the rule which has been followed as the leading case on this question. In that well-known case, the injured servant was engaged in carrying bolts to be used in repair of a bridge which was devoted to interstate commerce, and the court held that such was employment in interstate commerce and that the federal law applied, even though the servant was not at that time engaged in the actual repair of the bridge. The service in which he was engaged was a necessary incident to the repair of the bridge. In the same manner, we respectfully submit to the court that while the carrying of bolts to a bridge for use in the repair of it was employment in interstate commerce, in a like manner the carrying away of rails taken out of an interstate track was just as much employment in interstate commerce.
Erie R.R. Co. v. Winfield, 61 L.Ed. 1057; N.Y.C.R.R. Co. v. Marcone, 74 L.Ed. 892; B. W.R. Co. v. McConnell, 142 C.C.A. 555, 228 Fed. 263.
The appellant failed to prove the case charged in his declaration.
The evidence failed to show negligence on the part of the defendant.
Batson-Haten Lbr. Co. v. Thames, 147 Miss. 794, 114 So. 25; Cobb Bros. Const. Co. v. Campbell, 176 Miss. 95, 170 So. 283; Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 162, 149 So. 792.
Whether under the Federal Act, or the state law, the servant assumes the usual and ordinary risk of the employment. The only exception is that if this be under the state law, the servant does not assume the risk due to the negligence of the master, as to which there is no proof in this record.
Argued orally by S.H. Long, for appellant, and by C.R. Bolton, for appellees.
The appellant was plaintiff in the court below. He brought suit against J.M. Kurn and John G. Lonsdale, trustees of the St. Louis-San Francisco Railway Company, for personal injuries sustained, as he contended, by strain from being required to lift rails, he having been previously injured, and the railroad company and the trustees aforesaid had knowledge of the prior injury and his inability to do heavy work, lifting, et cetera; and that, as a result, he sustained a permanent physical injury, for which he has asked damages in the sum of $3,000.
A principal question in the case is whether at the time of the injury sued for the work of the appellant was in interstate or intrastate transportation. If he had been engaged in interstate transportation, federal liability under the Carriers Law would control, and he would have been held to have assumed the risk of his employment. The circuit judge, at the conclusion of the plaintiff's evidence, held that the Federal Employers' Liability Act, 45 U.S.C.A. Sections 51-59, controlled, and that he had assumed the risk, that the company or trustees were not liable, and granted a peremptory instruction in favor of the defendants, appellees here.
The type of work which the appellant was doing at the time the injury occurred is described in his testimony in the record, as follows:
"Q. Now, what work were you doing when you were injured? A. Loading rails.
"Q. I want you to tell the jury there why you were loading rails. A. Well, that job was allowed three men on the road.
"Q. You mean section hands on the road? A. Three section hands, and one of them laid off, that didn't leave but two, and they had some rail to load, and it was a lot of scrap rail, as then they had some second hand rail, they called it, and Mr. Maxwell come and told me he wanted me to help load the rail, and I told him it was too heavy for me to load, I says `That would hurt me, I never would get over it' and he says `You have to do what I say do if you expect to stay here' and I says `If I have to do it, I want my job. I will do the best I can.'
"Q. Explain to the jury how you were handling those rails? A. They had them unloaded just this side of my house on the ground. Took a push car and loaded the rail on the push car and come on out on the main line and in on another sidetrack right up behind the flat car, roll the push car up by the track the flat car was on and lift that rail up on the flat car, I guess you know what I am talking about, one like you load logs on.
"Q. You mean the flat car was on the same track the push car was on? A. Same track, and lift that rail on the end of the flat car off the push car and after we get it there we get up, two of us, Mr. Maxwell and the other boy was pushing it and we was up and pulling it.
"Q. They were pushing it from the back end? A. Yes, sir, and this little rail wasn't any trouble at all.
"Q. What you mean by that? A. Some smaller, eighty or ninety, it's light besides that hundred and twelve.
"Q. Did you load the little rails before you loaded the big rails? A. Yes, sir.
"Q. How many big rails did you have there? A. Two.
"Q. What kind of rails were they, were they new rails or secondhand? A. They was new rails but defective, they had been run in the main line and had some bad places in them, they was taken out.
"Q. You say two of them, what weight were they? Do you know what they weighed? A. I couldn't tell you what the rail weighed but I can tell you how long the rail was and what size.
"Q. How long? A. Thirty-nine feet long and a hundred twelve pounds to the yard, I can't figure it.
"Q. I believe you stated a while ago that you and one of the other hands got up on the flat car to pull the rail up on it? A. Yes, sir.
"Q. Was this forman, Mr. Maxwell, there directing this work? A. Yes, sir.
"Q. Telling you what to do and how to do? A. Yes, sir.
"Q. Now, I want you to tell the jury in what part of that operation or that lifting there it was you got hurt. A. Lifting it and pulling it back on the car was what hurt me.
"Q. What rail was it? A. That big 12-pound rail.
"Q. What did you do when you got hurt there? A. When I got hurt I went out by the side of the house and laid down until I could go to the doctor."
The appellant also testified that after he was injured in 1935, he was assigned to employment of a light character, and because the company was aware of his inability to further do heavy work, they had instructed the section foreman not to assign him to heavy work as he had been injured and had not sued the company. At the time of his injury, in 1935, he carried liability insurance and collected under the policy, furnishing the necessary proof of his injury by a physician; but, he was required to sign an instrument to the trustees of the railroad reciting, among other things, that he was not injured and had no claim against the company, et cetera, which was required to be retained in the employment of the company as they would not continue in their employment anyone who had an unsettled claim against them.
It appears in the evidence that the appellant had been in the employment of the railway company from 1917 until 1937, at which time he was discharged upon presenting this claim; that he was first injured in 1922 or 1923 but was continued in their employment after recovering therefrom; that he was again injured in 1935, and, as stated above, he was assigned to light work until, as plaintiff testified, under the direction of the section foreman and under plaintiff's protest he was required to lift steel rails — he was told by the section foreman that he could not remain on the job if he did not do what he was told to do, and as a result the injury was sustained.
We have examined the evidence and we think that the employment was not in interstate transportation or work so closely related thereto as to be a part thereof. See New York Cent. R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, L.R.A. 1917D, 1, Ann. Cas. 1917D, 629; Industrial Accident Commission of the State of California v. Davis, 259 U.S. 182, 42 S.Ct. 489, 66 L.Ed. 888; Chicago Northwestern R. Co. v. Bolle, 284 U.S. 74, 52 S.Ct. 59, 76 L.Ed. 173; New York, New Haven Hartford R. Co. v. Bezue, 284 U.S. 415, 52 S.Ct. 205, 76 L.Ed. 370, 77 A.L.R. 1370. It seems to be the rule that if the pleadings are silent as to the character of employment, whether in interstate or intrastate, that the presumption is that the employment was within the State and that the employee was engaged in intrastate commerce. Roberts, Federal Liabilities of Carriers, vol. 2, page 1960, Section 1017, which reads as follows: "Until the contrary is shown, it will be presumed in an action for injuries to a railroad employee through the negligence of his employer, in the use or operation of its railway within the State, that he was engaged in intrastate commerce and that he is seeking a remedy under the laws of the State. However, as is seen hereafter, the presumption does not obtain where evidence is introduced at the trial of an element of interstate commerce in the employment in connection with which the cause of action arose."
To bring the action within the federal liability under the federal law, the pleading should state a case coming under such federal liability, but if the plaintiff alleges liability under a state law, the burden is upon him to sustain the allegations of the declaration. 2nd Roberts Federal Liabilities of Carriers, Section 1018.
We think that the appellee is in error therefore in saying that the same result must be reached whether the case is under the state law or under the federal law. The testimony of plaintiff, if true, would show negligence on the part of the master under the state law, and he would not be expected to assume or held to have assumed the risk of the master's negligence; and, under state law, the direction of the section foreman to do the work in which the injury occurred in which he told him he would lose his job if he did not do what he was told to do, relieved him from any assumption of the risk.
The peremptory instruction was given at the conclusion of the plaintiff's evidence, and the evidence on behalf of the defendants was not presented to the court or jury. Consequently, the case must be reversed and the cause remanded for a new trial.
Reversed and remanded.