Chicago, Milwaukee and St. Paul Railway Company v. Chinn
| Decision Date | 02 February 1923 |
| Docket Number | 11,559 |
| Citation | 137 N.E. 885,86 Ind.App. 646 |
| Parties | CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COMPANY v. CHINN ET AL |
| Court | Indiana Appellate Court |
Rehearing denied April 27, 1923.
Transfer denied May 29, 1923.
Writ Certiorari to Supreme court of United States Denied january 10, 1924.
From Industrial Board of Indiana.
Proceeding under the Workmen's Compensation Act by Eva Chinn and another for compensation for the death of Alfred P. Chinn opposed by the Chicago, Milwaukee and St. Paul Railway Company. From an award for claimants, the defendant appeals.
Affirmed.
Beasley, Douthitt, Crawford & Beasley, for appellant.
Hamill, Hickey, Evans & Danner, for appellees.
This was an action before the Industrial Board to recover compensation for alleged injuries and death of Alfred P. Chinn, husband of Eva Chinn and father of Henry Chinn, which injuries were alleged to have been sustained while in the employ of appellant on December 20, 1921. It is alleged that the decedent's injuries were sustained by reason of an accident arising out of and in the course of his employment while acting as superintendent over men working in appellant's Hulman street yards in the city of Terre Haute.
The Industrial Board found that, on and prior to December 20, 1921, the decedent was in the employment of appellant at an average weekly wage of $ 24; that appellant was a common carrier and was engaged in such business during the entire period of the employment of the said decedent; that, as such common carrier, appellant, during said period, operated a line of railroad from points within the State of Indiana to points without, and was engaged in both interstate and intrastate commerce as such common carrier; that on December 20, 1921, while employed in and performing services for appellant as such common carrier in intrastate commerce, the said decedent received a personal injury by an accident arising out of and in the course of his employment, and arising out of the performance of services in intrastate commerce; that such injury resulted in his death on January 16, 1922; that he left surviving him, as sole and only dependents, appellees, his wife, and his son under eighteen years of age; that said decedent was living with his said wife and son at the time of the injury and death, was supporting them from his earnings, and they were wholly dependent upon him; that appellant had personal knowledge of such injury and death at the time of the occurrence.
On this finding, the Industrial Board awarded appellees, in equal shares, compensation at the rate of $ 13.20 per week, to begin January 16, 1922, and continue during the period of their dependency, not exceeding 300 weeks.
Appellant answered that decedent and appellant, at the time of the alleged injuries, were each engaged in interstate commerce. That appellant operated a system of steam railroads extending through the states of Indiana, Illinois, Wisconsin and elsewhere. That, included in such system of steam railroads, were certain tracks known as the "Hulman Street Yards," consisting of side tracks, one of which contained railroad scales used for the purpose of weighing cars and freight used and transported in interstate commerce. That said decedent, at the time of the accident and injury, was employed by appellant in the construction, repair and upkeep of railroad tracks, bridges and scales. That the track on which said gang of men and the decedent were engaged at work in making repairs and in construction work was used to transport interstate commerce.
At the trial there was undisputed evidence that the decedent, with the men working under him, were generally employed in repairing tracks, bridges and scales and had been repairing and improving the particular scales above mentioned, and it was stipulated and agreed that the scales in question were, prior to the making of the repairs on December 20, 1921, used indiscriminately in weighing cars containing freight shipped in intrastate and interstate commerce, and, subsequent to the making of such repairs, said scales were used indiscriminately in weighing freight transported in intrastate and interstate commerce, and that appellant operated the line of railroad involved, at and prior to the time of the accident, from Westport, Indiana to Faithorn, Illinois, and that it was a part of a system of steam railroads extending through the states of Indiana, Illinois, Wisconsin, Minnesota and other states in the northwest. At the time of the accident, decedent was making a trip to the yard master's office for his railroad mail, and, when crossing a track, was struck by one of appellant's trains, receiving the injury which, as appellees claim, resulted thereafter in his death.
It is observed that the facts in this case as to the nature of decedent's employment at the time of his injury, whether under the Workmen's Compensation Act, or the Federal Employer's Liability Act, are substantially undisputed, and the question becomes one of law for the court. The decisions of the different states are in irreconcilable conflict. For the purposes of this opinion, we do not need to discuss them.
In this state, the Supreme Court in Southern R. Co. v. Howerton (1914), 182 Ind. 208, 105 N.E. 1025, held that an employee of a railroad engaged in interstate commerce, who was himself engaged in the work of laying track, or assisting in doing so, was engaged in interstate commerce, and his action was controlled by the federal statute.
In Cleveland, etc., R. Co. v. Ropp (1921), 190 Ind. 115, 129 N.E. 475, the employee was engaged in taking old...
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