Mississippi Cent. R. Co. v. Knight

^* Headnotes 1. Commerce, 12 C.J., Section 55; 2. Master and Servant, 26 Cyc., p. 1495. As to when employees are deemed to be engaged in interstate commerce within the federal Employers' Liability Act, see notes in 47 L.R.A. (N.S.) 52; L.R.A. 1915C, 56; On what employees are engaged in interstate commerce within federal Employers' Liability Act, see notes in 10 A.L.R. 1191; 14 A.L.R. 732; 24 A.L.R. 635, 29 A.L.R. 1207; 18 R.C.L., pp, 850-856; 3 R.C.L. Supp. 861 et seq., 4 R.C.L. Supp., p. 1216 et seq., 5 R.C.L. Supp., p. 1007 et seq. The appellee, Ernest Knight, filed this suit in the circuit court of Jefferson Davis county, Miss., against the Mississippi Central Railroad Company, seeking to recover damages on account of personal injuries alleged to have been sustained by him on account of the negligent operation of the locomotives and cars of the defendant company. The defendant pleaded the general issue, and gave three separate notices of special affirmative matter under its plea of general issue, one of which was that the defendant was engaged in interstate commerce, and that plaintiff assumed the risk of such a collision as he claimed caused his injuries. Upon the proof offered the court below held that the statutes of the state of Mississippi alone controlled the cause of action, and not the federal Employers' Liability Act of April 22, 1908 (35 Stat. 65, c. 149; U.S. Comp. Stat. Supp. 1909, p. 1171), as amended April 5, 1910 (36 Stat. 291, c. 143; U.S. Comp. St., sections 1010, 8662, 8665), and denied to appellant the defense of assumption of risk permitted by the said Employers' Liability Act (U.S. Comp. St., sections 8657-8665), and allowed to appellee the benefit of the prima-facie statute of the state of Mississippi, which, under the Employers' Liability Act, is not applicable. There was a verdict and judgment for the plaintiff for the sum of ten thousand dollars from which this appeal was prosecuted.

It is conceded by counsel for the appellee that if the appellant, Railroad Company, and the appellee, as its employee, were engaged in interstate commerce at the time of the collision and resulting injury, the cause of action was controlled by the Employers' Liability Act, and the cause must be reversed. We shall, therefore, set out somewhat in detail the facts bearing upon this point.

The appellant, the Mississippi Central Railroad Company, is a common carrier by railroad engaged in commerce between the several states, and owns and operates a line of railroad between Natchez, Miss., and Hattiesburg, Miss. By a traffic arrangement with other railroads it operated one freight train from Natchez, through Hattiesburg, to Mobile, Ala., while all of its other trains were operated only over its own line of road, which is wholly intrastate. The appellee was an engineer in appellant's employment, and engaged in the passenger service. On the occasion when he was injured, the appellee was the engineer on passenger train No. 2 which left Natchez, Miss., for Hattiesburg, Miss., with a United States mail car and clerk, one American Railway Express car, and certain passenger coaches. After this train reached the passenger depot in the city of Hattiesburg, and had been entirely unloaded, the appellee was proceeding with his locomotive through the railroad yards to the roundhouse, the journey's end, and while so doing he was injured by a collision with the caboose of another train which either rolled from a side track into his engine, or was standing on another track in such a position that it did not clear the track along which appellee's engine was traveling.

On the day the appellee was injured the proof establishes the fact that there was handled on passenger train No. 2, on which appellee was engineer, three interstate express shipments from Natchez, Miss., to Brookhaven, Miss., which is about one-half the distance from Natchez to Hattiesburg. These three shipments were all delivered to the express company at Brookhaven to be forwarded over the Illinois Central Railroad to points in the state of Louisiana, and the interstate character of the train from Natchez to Brookhaven is conceded. There is no testimony whatever that the train carried any interstate shipment after leaving Brookhaven for Hattiesburg.

The testimony shows that the appellant has traffic connections at Natchez, Miss., and that it there customarily receives United States mail out of Louisiana across the Mississippi river, but there was no testimony that any mail was there placed on train No. 2 on this particular date; that at Roxie, Miss., the appellant's tracks cross the tracks of the Yazoo Mississippi Valley Railroad Company, which operates a line of railroad from New Orleans, La., to Memphis, Tenn., and at Brookhaven, Miss., its tracks cross the tracks of the Illinois Central Railroad Company, which operates a line of railroad between New Orleans, La., and Chicago, Ill.; that at each of these junction points the train in question usually received United States mail pouches, but there is no testimony that this particular train received any mail whatever at either place. The testimony further shows that at Wanilla, Miss., appellant's tracks cross the tracks of the New Orleans Great Northern Railroad Company, which operates a line of railroad from Jackson, Miss., to New Orleans, La., and that the train in question received one mail pouch at Wanilla, but the testimony failed to show whether this mail pouch originated within or without the state of Mississippi.

The rule for determining whether the liability of the defendant to this injured employee is controlled by the federal Employers' Liability Act is well established, and has been repeatedly announced by the United States supreme court, and the only difficulty arises in applying this test to the particular facts.

"The true test of employment in [interstate] commerce in the sense intended is, 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."Shanks v. Delaware, Lackawanna Western Railroad Company,239 U.S. 556, 36 S. Ct. 188, 60 L. Ed. 436, L.R.A. 1916C, 797.

The same principle was announced in Pederson v. Delaware,Lackawanna Western Railroad Company, 229 U.S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, and has been illustrated and applied in many other cases by that court.

While the appellant company only owned and operated an intrastate railroad, there can be no question that the company itself was engaged in both intrastate and interstate commerce. When train No. 2, upon which the appellee was injured, was made up at Natchez, Miss., for service between that point and Hattiesburg, Miss., without any kind of commerce on it, it was an intrastate train, and the character of this train remained unchanged until it was shown that it engaged in interstate transportation. A good deal of the testimony in the record was devoted to showing that this train had interstate mail connections from which it usually received interstate mail, but, conceding for the purpose of this decision that the United States mail is commerce within the meaning of the act, the testimony wholly fails to show that the train in question received a single item or parcel of interstate mail. The testimony does establish the interstate character of the service from Natchez, Miss., to Brookhaven, Miss., but the evidence shows that, at the latter point, every interstate shipment that was shown to have been on the train was delivered to a connecting carrier. The train had then completed about one-half of its journey between its terminal points, and from Brookhaven, Miss., to Hattiesburg, Miss., the evidence wholly fails to show that the train carried any interstate shipment or commerce whatever.

In the case of the Illinois Cent. R. Co., v. Behrens,233 U.S. 473, 34 S. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163, where the injured employee was a member of a crew attached to a switch engine operated exclusively in the city of New Orleans, in stating the facts, the court said:

"In short, the crew handled interstate and intrastate traffic indiscriminately, frequently moving both at once and at times turning directly from one to the other. At the time of the collision the crew was moving several cars loaded with freight which was wholly intrastate, and upon completing that movement was to have gathered up and taken to other points several other cars as a step or link in their transportation to various destinations within and without the state."

In passing upon the question as to whether, upon these facts, the injured employee, at the time of his injury, was employed in interstate commerce within the meaning of the Employers' Liability Act, the court said:

"Giving to the words ``suffering injury while he is employed by such carrier in such commerce' their natural meaning, as we think must be done, it is clear that Congress intended to confine its action to injuries occurring when the particular service in which the employee is engaged is a part of interstate commerce. . . .

"Here, at the time of the fatal injury the intestate was engaged in moving several cars, all loaded with intrastate freight, from one part of the city to another. That was not a service in interstate commerce, and so the injury and resulting death were not within the statute. That he was expected, upon the completion of that task, to engage in another which would have been a part of interstate commerce is immaterial under the statute, for by its terms the true test is the nature of the work being done at the time of the injury."

In the case of Chicago, Burlington Quincy Railroad Company v. Harrington, 241 U.S. 177, 36 S. Ct. 517, 60 L. Ed. 941, the United States supreme court said: "As the question is with respect to the employment of the decedent at the time of the injury, (Illinois Cent. R. Co. v. Behrens, 233 U.S. 473, 478, 58 L. Ed. 1051, 1055, 34 S. Ct. 646, Ann. Cas. 1914C, 163), it is not important whether he had previously been engaged in interstate commerce, or that it was contemplated that he would be so engaged after his immediate duty had been performed."

See, also, the case of Erie Railroad Co. v. Welsh,242 U.S. 303, 37 S. Ct. 116, 61 L. Ed. 319.

Applying the principles announced in these cases to the facts in the case at bar, we have reached the conclusion that the appellee was not engaged in interstate commerce at the time of his injury, and that the liability of the appellant is not controlled by the Employers' Liability Act. The fact that this intrastate train was engaged in interstate commerce for a part of its journey does not stamp it as a train engaged in interstate commerce throughout its journey. The interstate service of the injured employee ended at Brookhaven, Miss. From that point to the terminus of the railroad at Hattiesburg, at which point the appellee was injured, it is not shown that any interstate shipments were handled, and since the injured employee was not engaged in interstate commerce at the time of the injury, it is immaterial that he had previously been or in the immediate future might be so engaged.

The court below instructed the jury for the plaintiff:

"That in all actions against railroad corporations using engines, locomotives and cars propelled by the dangerous agency of steam and running on tracks, for damages done to persons, proof of injury inflicted by the running of the engine, locomotives, and cars of any such railroad is prima-facie evidence of the want of reasonable skill and care of such railroad corporation in reference to such injury."

The appellant contends that this instruction constituted reversible error, without reference to whether or not this case was controlled by the federal Employers' Liability Act; the contention of the appellant being that, since this court has held that, when the facts and circumstances under which the injury was inflicted are in evidence, the issues must be determined from the facts and not on any presumption of negligence, it was error to grant this instruction for the reason that the attendant facts were shown in this case. This question is controlled by previous decisions of this court. The evidence as to the circumstances attending this injury was conflicting, but it was held in the case of Alabama Vicksburg Ry. Co. v. Thornhill, 106 Miss. 387, 63 So. 674, that:

"Even though the facts and circumstances are in evidence, and although there may be no conflict therein as to what these facts and circumstances are, unless they justify the court in directing a verdict, it is proper to charge the jury on request of the plaintiff that proof of injury by the running of the cars isprima-facie evidence of negligence."

In the case of Vicksburg Meridian Railroad Co. v.Phillips, 64 Miss. 693, 2 So. 537, the court said: "The statute was enacted to meet cases where the manner of the injury inflicted is not known to others than the employees of the railroad company, but it is equally applicable where a cloud of witnesses see the injury. It is not needed there, it is true, but it is not error to invoke it, for the law affects the railroad company with liability, prima facie, in every case of injury inflicted by the running of its locomotives or cars. If the evidence showing the injury inflicted rebuts the presumption, well, but if it does not, the presumption created by law from the fact of the injury in this mode is to stand and control.

"It is proper for the court, at the instance of the defendant, to instruct the jury that when the circumstances accompanying the infliction of injury by the running of locomotive or cars are in evidence before them, it is to decide the question of skill and care in reference to the injury from those circumstances. Presumption must yield to facts where they are all known. But it cannot be said to be erroneous to instruct the jury that the law presumes wrong and imputes blame from the fact of injury inflicted by the running of locomotive or cars."

These announcements of the court are decisive of this contention, and consequently the judgment of the court below will be affirmed.

Affirmed.