Atchison, T. & SFR Co. v. Wottle

• Decision Date: 09 January 1952
• Docket Number: No. 4305.,4305.
• Citation: 193 F.2d 628
• Parties: ATCHISON, T. & S. F. R. CO. v. WOTTLE.
• Court: U.S. Court of Appeals — Tenth Circuit

193 F.2d 628 (1952)

ATCHISON, T. & S. F. R. CO. v. WOTTLE.

No. 4305.

United States Court of Appeals Tenth Circuit.

January 9, 1952.

E. C. Iden, Albuquerque, N. M. (R. S. Outlaw, Chicago, Ill. and B. G. Johnson, Albuquerque, N. M., on the brief), for appellant.

Francis T. O'Donnell, Gallup, N. M., for appellee.

Before BRATTON, MURRAH and PICKETT, Circuit Judges.

MURRAH, Circuit Judge.

Invoking the provisions of the Federal Employers' Liability Act of April 22, 1908, as amended, 45 U.S.C.A. 51 et seq., Clementin Wottle, Administrator of the Estate of Edward Begay, deceased, instituted this action against the Atchison, Topeka and Santa Fe Railway Company, to recover damages for the injury and death of the deceased. It was alleged in the complaint that while the deceased was an employee of the Railway Company, and acting within the scope of his employment, he was negligently struck and killed by the defendant's train, and that such negligence on the part of the Company was the proximate cause of the injury and death. The Company denied that the deceased was acting within the scope of his employment at the time of the accident; denied any negligence on its part, and pleaded contributory negligence.

Upon a trial without a jury, the court found that at the time of the accident, the deceased was acting within the scope of his employment; that the Railway Company was guilty of primary negligence proximately causing the accident, and that the deceased was guilty of contributory negligence, to be considered in determining the amount of damages. The Railway Company appeals from a judgment against it in the sum of $7,200 based upon these findings.

The Employers' Liability Act, supra, makes a common carrier engaged in interstate commerce "liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier * * *". Appellant concedes that it is a common carrier engaged in interstate commerce, and that as a section hand, the deceased was employed by it in such commerce. The narrow question is whether, at the time of the accident, he was still on duty.

The material facts bearing on that issue are not in dispute. The deceased was employed by the Company as a section hand at a place called South Garcia, located on the main line of the appellant Company in New Mexico. The Company maintained there a house for the section foreman and a bunk house for the section men, who provided their own food and bedding. There was no depot, railroad agent, residences or other buildings there. The deceased had been employed by the Company as a section hand from time to time, but had started to work at this particular point on the day of the accident. After spending the night of March 6, 1950, in the bunk house, the deceased reported for work the next morning at the nearby tool house with the section gang. They were taken on a motor rail car to the point of work, and left in time to arrive back at the tool house at the end of the work day. After arriving at the tool house, the deceased was free to do as he pleased. He could go home, stay in the bunk house or "go hunting or sleeping". About an hour after quitting time, he and his bunk mate, Platero, left in an automobile owned by him, saying that they were going to Correo, located about twelve miles from there, to get some groceries, and to pick up Platero's bedding at a place called Suwanee, intending to bring the groceries and bedding back to the bunk house. In going from the bunk house to Correo and Suwanee, the usual route was to cross the railroad tracks at South Garcia. As the automobile started to cross the tracks, it was struck by a deisel engine pulling a passenger train, and the deceased and his companion were killed.

It is no longer doubted that the Employers' Liability Act extends to and covers not only the actual work performed in interstate commerce, but those acts which can be said to be necessarily incident thereto. Thus, an employee is working in commerce while going to and from his actual place of work after reporting for duty. Erie R. R. Co. v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057; Bountiful Brick Co. v. Giles, 276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507; New York Central & Hudson River R. R. Co. v. Carr, 238 U.S. 260, 263, 35 S.Ct. 780, 59 L. Ed. 1298; Lukon v. Pa. R. Co., 3 Cir., 131 F.2d 327; Young v. New York, N. H. & H. R. Co., 2 Cir., 74 F.2d 251; Morris v. Pennsylvania R. Co., 2 Cir., 187 F.2d 837. And, the Act covers temporary departures from his line or course of duty, as where a fireman, after oiling, firing and preparing his engine for an interstate journey, temporarily left his engine to go to his nearby boarding house and was struck while on the railroad premises. North Carolina R. R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591. Or, where an employee temporarily leaves his actual work to inquire of his supervisor about a Government bond which he had purchased in accordance with a payroll deduction plan sponsored by the employer, and encouraged by bond rallies conducted on the employer's premises during work hours. Healy v. Pennsylvania R. Co., 3 Cir., 184 F.2d 209. See also Thompson v. Eargle, 4 Cir., 182 F.2d 717, 719.

But, given its most liberal interpretation, the Act cannot be extended to cover activities not necessarily incident to or an integral part of employment in...