at intervals, driven in iron sockets, and ex-, around the cinder pit. It does not appear tended up above the pile of timbers. The for what purpose they were used, except car set east and west, and on a curved track, those that went about the cinder pit, and the the high side being on the north. use about the cinder pit must have been in the nature of repairs. The concrete question, therefore, is: Was plaintiff, while assisting in the unloading of these timbers, directly engaged in the furtherance of interstate traffic, or in work so closely connected with interstate traffic as to become a part thereof?

Plaintiff was directed by his foreman to assist in unloading this flat car. He was directed to get an axe and cut the two middle stakes first. This he did, while another on top the load of timbers threw the stakes, when cut, out of the way. Plaintiff, after cutting the two middle stakes, awaited the return of his foreman, who had gone away [1] There can be no hard and fast rule by temporarily while the middle stakes were which to determine whether an employé of being cut. On the foreman's return plaintiff an interstate railroad is engaged in interwas directed to cut the east end stake. Aft-state traffic, but each case must depend upon er striking this stake, which was 7 or 8 feet its own facts. The general rule is that the from the end of the car, the west end stake work in which an employé is engaged must gave way, and the timbers fell, catching plaintiff's feet, and crushing them, as he was endeavoring to escape over a pile of timbers alongside the flat car.

Plaintiff charged several specific acts of negligence, but only one was submitted to the jury, viz. that defendant was guilty of negligence in directing plaintiff to cut the stakes without first providing against the timbers falling when the stakes were removed, which in general means that the defendant was negligent in failing to exercise ordinary care to furnish plaintiff a reasonably safe place to work. The answer was a general denial, assumption of risk, and contributory negligence.

Alleged error as assigned may be grouped under two heads: (1) The refusal of the court to give defendant's instruction in the nature of a demurrer; and (2) giving instructions on the part of plaintiff, and refusing and modifying instructions asked by defendant. The demurrer was leveled chiefly at the point that plaintiff had bottomed his cause upon the federal Employers' Liability Act, and had failed to show that at the time of his injury he was engaged in work directly connected with interstate traffic, or so closely connected therewith as to become a part of it. The record shows that defendant's railroad is interstate; that the Arlington bridge is on the main line from Missouri to Oklahoma and Texas. Defendant concedes

be in the direct furtherance of interstate traffic, or work so closely connected with interstate traffic as necessarily to become a part thereof. Pedersen v. Railroad, 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; Shanks v. Railroad, 239 U. S. 560, 36 S. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797; Chicago, Burlington & Quincy Railroad Co. v. Harrington, 241 U. S. 177, 36 S. Ct. 517, 60 L. Ed. 941; Harrington v. Railroad (Mo. App.) 180 S. W. 443; Probus v. I. C. Railway Co., 181 Ky. 7, 203 S. W. 862; Hargrove v. Gulf, C. & S. F. Railway Co. (Tex. Civ. App.) 202 S. W. 188.

[2] Employés of interstate railroads engaged in repairing tracks, bridges, switches, etc., used for both intrastate and interstate traffic are held to be employed in interstate commerce, and to be within the protection of the federal statute in case they sustain injuries while so employed. Pedersen V. Railroad, supra;. Central Railroad Co. v. Colasurdo, 192 Fed. 901, 113 C. C. A. 379; Zikos v. Railroad (C. C.) 179 Fed. 893; Jones v. Railroad, 149 Ky. 566, 149 S. W. 951; Probus v. I. C. Railway Co., supra; Hargrove v. Gulf, C. & S. F. Railway Co., supra. In the Pedersen Case, supra, it is said:

"Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars; and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. that the repairing of the bridge, the taking The security, expedition, and efficiency of the out the old timbers and putting in the new, being done. Indeed, the statute now before us commerce depends in large measure upon this would be work so directly in furtherance of proceeds upon the theory that the carrier is interstate traffic as to be a part of it, but in- charged with the duty of exercising appropriate sists that plaintiff was not employed at the care to prevent or correct any defect or insuftime of his injury in the direct furtherance ficiency ** * in its cars, engines, appliof interstate traflic, or in work so closely ances, machinery, track, roadbed, works, boats, connected therewith as to become a part of wharves, or other equipment' used in interstate it. Plaintiff had nothing to do with taking commerce. But independently of the statute, the old timbers out of the bridge or in put- we are of opinion that the work of keeping such ting the new ones in; he had nothing to do instrumentalities in a proper state of repair while thus used is so closely related to such with loading the old timbers, or with trans-commerce as to be in practice and in legal conporting them to the switch in Newburg. The templation a part of it. The contention to the record discloses also that some of the tim- contrary proceeds upon the assumption that inbers unloaded, or being unloaded, were used terstate commerce by railroad ean be separated in the yards at Newburg, and some of them into its several elements, and the nature of

(220 S.W.)

each determined regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?"

near by, and was injured while so loading. In Probus v. I. C. Railroad Co., supra, it was held that where an employé of an interstate carrier was engaged in lifting rails from the ground and placing them on a car to be taken to another point on the line, and there used in maintaining or repairing the Not only is the interstate carrier required track, it was a question for the jury whethto keep its track in a reasonably safe coner the person injured was engaged in interdition, but also it is required to keep its road-state commerce when injured. bed and right of way in a reasonably safe condition. Hargrove v. Gulf, C. & S. F. Railway Co., supra. Removing the discarded timbers taken from the bridge from the right of way would be as directly connected with interstate traffic as was the taking of said timbers from the bridge. The question arises, When would the handling of these discarded timbers cease to be a work directly connected with interstate traffic, or so close

In Hargrove v. Gulf, etc., Railway, supra, it was held that the operator of a loader, used to load rails on a flat car after workmen had removed them from the ties and laid new rails, was engaged in the repair of tracks, and if the railroad was interstate, such operator was engaged in interstate commerce. In the Hargrove Case, it is said:

"It stands to reason that appellee's railroad ly related thereto as to be a part thereof? if the steel rails which had been removed from could not long be safely and properly operated An employé engaged in operating the train the track when others were being put down had that hauled these timbers to Newburg was, been permitted to remain on and about appelin the light of the authorities, engaged in lant's track, and interfere, which they naturally work directly in furtherance of interstate would, with the proper upkeep and repair of commerce. Had the same crew that hauled such track, and perhaps would render it unthe timbers to Newburg unloaded them as safe, not only for the proper operation of apone continuous job, their work in unloading pellee's trains thereover, but also might endanwould surely have been as much in further- ger employés engaged in the necessary and ance of interstate commerce as the transport-proper upkeep and repair of such track.

in

ing of the timbers was, and we can see no difference in principle and application plaintiff's character of work than had he been of the original crew, and was unloading as a part of the continuous job in moving the timbers from the right of way. And in addition plaintiff had in his favor the fact that some of these timbers were to be used around the cinder pit which presumably accommodated all trains, both intra and inter state. Clearing the track and right of way of the discarded timbers was as necessary to the operation of interstate trains as was the repairing of the bridge. It was the duty of the defendant railway company to keep its track, roadbed, and right of way in a reasonably safe condition, and this could not be done except by removing and depositing these timbers somewhere; the removing and depositing being merely the completion of the original undertaking in the repairing of the bridge used in interstate traffic.

It was held in Philadelphia, B. & W. Railroad Co. v. McConnell, 228 Fed. 263, 142 C. C. A. 555, that an assistant foreman of a gang on a work train on an interstate road is engaged with interstate commerce when injured, when at the time he was engaged in removing old rails that had been replaced by new ones upon the main line of the road. In Cherpeski v. Great Northern Railway Co., 128 Minn. 360, 150 N. W. 1091, it was held a

question for the jury where the plaintiff, a section foreman, was working with others in taking out rails on the main line of an interstate carrier and putting others in their place, loading those taken out on a flat car

220 S.W.-2

We

occasion in question must be held to be in the
believe that what appellant was doing on the
nature of repairs to appellee's track. It may be
that the Supreme Court of the United States
went the extreme limit on this question in the
Pedersen Case, supra, and other cases follow-
ing that; and, while it is true that three of
the justices of that court dissented in the Peder-
sen Case, nevertheless the decision is one by
that court, and, the subject-matter being one
concerning which the decisions of that court are
ternative but to follow such decisions."
final and must control, this court has no al-

In Hardwick v. R. R., 181 Mo. App. 156, 168 S. W. 328, it is held that a section man sweeping snow from the switches connecting with the main track of an interstate railroad was engaged in interstate commerce under the federal Employers' Liability Act. In Spaw v. Railroad, 198 Mo. App. 552, 201 S. W. 927, it was held that an employé engaged in clearing a track where an engine was derailed was engaged in interstate commerce. In the Spaw Case the court said:

Employers' Liability Act unless the injury oc"But the cause of action is not within the curred when the particular service in which the employé is engaged is a part of interstate commerce.' Illinois Central Railway Co. v. Behrens, 233 U. S. 473 [34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163]. Hence the question arises, Was plaintiff engaged in interstate commerce at the time he was injured? Clearly he was as to the defendant terminal company, because he was then engaged in clearing the tracks of said company in order that transportation thereover might not be hindered or impeded. The tracks being indispensable to the interstate commerce in which the defendant

terminal railroad was engaged, the clearing some time, to the coal shed, where it was to thereof was not a matter of indifference to such commerce, but was 'so closely connected therewith as to be a part of it.' Pedersen v. Delaware, etc., R. Co., 229 U. S. 146, 151 [33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153].

The authorities all hold that when the work

be placed in bins or chutes, and supplied, as needed, to locomotives of all classes, some of which were engaged or about to be engaged in interstate and others in intrastate traffic. The Kansas City Court of Appeals hold that the deceased was not engaged in interstate commerce (180 S. W. 443), and the Supreme

being done is such that it directly affects or facilitates the carriage of interstate commerce, then the employé is engaged in such commerce.' "Court of the United States affirmed this

In Dowell v. Wabash Ry. Co., 190 S. W. 939, it was held that a section man, engaged in the service of an interstate carrier, was engaged in work in the furtherance of the interstate commerce, when he was repairing a side track leading from the main track to scales on which cars destined for other states were weighed to ascertain whether they were overloaded. It has been held that employés engaged in repairing switches and side tracks over which interstate and intrastate traffic was carried were, within the meaning of the federal Employers' Liability Act, engaged in interstate commerce. Jones v. Railroad, 149 Ky. 566, 149 S. W. 951; Truesdell v. Railroad, 159 Ky. 718, 169 S. W. 471. In Texas & P. R. Co. v. White (Tex. Civ. App.) 177 S. W. 1185, it was held that a section foreman of an interstate railroad run down while helping his crew lift a hand car from the track for a train made up partly of cars bound for interstate points was engaged in interstate commerce within the federal Employers' Liability Act.

We have not overlooked the case of Chicago, Burlington & Quincy Railroad Co. V. Harrington, 241 U. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941. The Supreme Court of the United States there said:

holding. But it will be noted that the work in which Harrington was engaged was in handling coal, a part of which would be used to fire engines in interstate traffic; while in the case at bar plaintiff was finishing a work that had admittedly been in furtherance of interstate traffic from its inception, and like the Pedersen Case, in a measure, in that it was in the nature of repairs, since the timbers came from the bridge that was repaired, and some of them were to be used around the cinder pit in the yards at Newburg. We believe that the facts of the instant case distinguish it from the Harrington Case. If we apply the "practical sense suited to the occasion" rule, it necessarily follows that the work of unloading these timbers was "so closely related" to work, admittedly in furtherance of interstate commerce, "as to be practically a part of it."

[3] Bearing in mind the distinction in the character of work being done by plaintiff in the instant case from that in the Harrington Case, and applying the "practical sense” rule spoken of in the Harrington Case, we hold that error was not committed by submitting to the jury the question as to whether plaintiff was at the time of his injury engaged in work directly connected with interstate commerce. Nor do we think that defendant's demurrer should have been sustained on other grounds.

[4-6] Appellant complains about the action of the trial court in giving certain instructions for plaintiff, and in refusing and

"As we have pointed out, the federal act speaks of interstate commerce in a practical sense suited to the occasion, and 'the true test of employment in such commerce in the sense intended is: Was the employé at the time of the injury engaged in interstate transportation, or in work so closely related to it as to be prac-modifying instructions requested by defendtically a part of it?"

ant. Defendant requested two instructions, 3 and 4, which submit the assumption of As we have pointed out, the Supreme Court risk defense, and these were refused; but we in the Pedersen Case, supra, and many others, think the same ground is substantially coverholds that there can be no definite rule of ed in defendant's instruction modified by the guidance in the character of question here; court. Defendant requested an instruction, that each case must turn on its own facts. directing the jury that plaintiff could not reThe Harrington Case went to the Supreme cover if they found that, before he entered Court of the United States from the Kansas into the act of cutting the post from the flat City Court of Appeals. It was before that car he had investigated the condition of court twice (163 Mo. App. 194, 146 S. W. the timbers on the car, and had seen and ob820; also 180 S. W. 443), where a more ex- served their condition, and had discussed tended statement of the facts may be found. with the defendant's agent the safe and propPatrick Harrington, a switchman, was em- er way in which to unload said timber, and ployed by the railway company. The switch-that it was "determined" between plaintiff ing crew in which Harrington worked did and defendant's agent that the manner purnot work outside of Missouri, but in the company's yard in Kansas City. Harrington was killed while switching a car of coal, belonging to the railway company, and which had been standing on a storage track for

sued in attempting to unload the car was reasonably safe, and was the proper way to unload the same, and that the plaintiff could understand the danger incident to unloading the car, and that plaintiff was as familiar

(220 S. W.)

"If you find from the evidence that the defendant was guilty of negligence as defined in these instructions, and if you find the plaintiff instructions which partly contributed to the was also guilty of negligence as defined in these injuries, the plaintiff cannot recover the full damages sustained by him, but only such a proportional amount bearing the same relation to the full amount as the negligence attributable to the plaintiff bears to the entire negligence attributable to both."

with the conditions appertaining to the car [ the plaintiff's injuries, then and in that event as was his foreman. The jury were told by the plaintiff cannot recover full damages for this instruction that, if plaintiff knew all his injuries so received, but only a proportional these things as well as his foreman, he as- amount, bearing the same relation to the full sumed the risk and could not recover. The amount as the negligence attributable to the trial court added the word "agreed" before tributed to both the plaintiff and defendant.” defendant bears to the entire negligence atthe word "determined" in the instruction. We do not think that this changed the real This correctly states the rule. Cross v. meaning of the instruction. The foreman tes-C., B. & Q. Railroad, 191 Mo. App. loc. cit. 212, tified that all details were gone over, and 177 S. W. 1127; Norfolk, etc., Ry. Co. v. that it was the common judgment and opin- Earnest, 229 U. S. loc. cit. 122, 33 Sup. Ct. ion of all that the manner pursued in at- 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172. tempting to unload the flat car was the prop[10] The court of its own motion gave an er one. Plaintiff testified that that was the instruction as follows: first car of timber that he ever undertook to help unload, and that he knew absolutely nothing about how to proceed or what to do except as he was directed by the foreman. These were proper questions for the jury, and in our opinion were properly submitted. [7-9] Defendant urges that plaintiff was guilty of contributory negligence in failing to run forward and then to the south between two piles of timbers that had been previously unloaded, instead of running south and over the timbers, as he attempted to do. Plaintiff was chopping right-handed the east end stake, his face to the east; it was about 8 or 10 feet from the stake to the end of the This was clearly a question for the jury. It is well settled that in an emergency and where action of some sort must be taken at once, one will not be held guilty, as a matter of law, of negligence merely because he, in the emergency, did not act in the safest way. Under the federal Employers' Liability Act contributory negligence goes only to the reduction of damages. On behalf of plaintiff the court gave instruction No. 4, as follows:

car.

"Although you may believe and find from the evidence in this case that the plaintiff was guilty of contributory negligence which caused his injury while he was working in unloading said car, yet such contributory negligence will not defeat a recovery entirely, provided you find defendant was negligent. Such negligence, if any

has been shown in the evidence, will only go

to diminish the damage allowed by you in your verdict."

The statute (8 U. S. Comp. 1916, § 8659; 35 U. S. 66) on contributory negligence is as follows:

"In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employé, or where such injuries have resulted in his death, the fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé."

The defendant requested an instruction which was given, defining the rule thus:

"Though you may believe that the defendant was guilty of negligence which contributed to

The two instructions are conflicting, but such conflict was evidently due to a mere inadvertence on the part of the court in using the word "plaintiff," in the instruction last quoted, where he clearly intended to use "defendant." It will be noticed that the instruction above quoted, requested by plaintiff and given, directs the jury that plaintiff's negligence goes to diminish damages. It will be presumed that the jury read and were familiar with all the instructions, and therefore they could not have gotten the idea, as urged by defendant, that the greater plaintiff's negligence, the greater his damages. We think that when all the instructions are considered together the jury could not have been misled by the inadvertent conflict. It is unreasonable to urge that the jury could have gotten the idea that the greater the negligence of the plaintiff, the greater his damages. The error in using the word

"plaintiff" where the word "defendant" clear

ly was intended was merely clerical, and is not reversible error. Campbell v. Traction Co., 178 Mo. App. loc. cit. 529, 163 S. W. 287.

[11] Defendant especially complains of plaintiff's instruction No. 4 set out above. This instruction told the jury that though plaintiff was guilty of contributory negligence "which caused his injury," this would not defeat recovery, provided they found that defendant was negligent. Defendant requested and the court gave an instruction which told the jury that if they believed and found from the evidence that "plaintiff was guilty of negligence, and that his negligence was the sole cause of his injury, and that defendant was guilty of no negligence contributing thereto," then plaintiff could not recover. Both instructions convey the idea that before defendant would be liable it must be shown

"Of this provision it is well said, in Penn. Co. v. Cole, 214 Fed. 948, 131 C. C. A. 244, that no degree of negligence on the part of an injured servant, however gross or proximate as a mat-1. Insurance ter of law, can bar a recovery, it being impossible that plaintiff's negligence should equal the combined negligence of both plaintiff and defendant. Consequently the sole issue we must solve on this branch of the case is whether or not the evidence in its aspect most favorable to plaintiff accuses the engineer of negligence, which either with or without negligence of plaintiff was a proximate cause of the injury."

Appeal from Circuit Court, Cedar County; B. G. Thurman, Judge.

Action by Laura L. Maupin against the Southern Surety Company. Judgment for plaintiff, and defendant appeals. Reversed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes