Alexander v. Great Northern Ry. Co.

• Decision Date: 20 January 1916
• Docket Number: 3574.
• Citation: 154 P. 914,51 Mont. 565
• Parties: ALEXANDER v. GREAT NORTHERN RY. CO.
• Court: Montana Supreme Court

154 P. 914

51 Mont. 565

ALEXANDER v. GREAT NORTHERN RY. CO.

No. 3574.

Supreme Court of Montana

January 20, 1916

Appeal from District Court, Flathead County; J. E. Erickson, Judge.

Action by J. C. Alexander, administrator of the estate of John P Hall, deceased, against the Great Northern Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

See also, 149 P. 1080.

Noffsinger & Walchli, of Kalispell, and Veazey & Veazey, of Great Falls for appellant.

Logan & Child, of Kalispell, and Walsh, Nolan & Scallon, of Helena, for respondent.

SANNER J.

On October 11, 1911, John P. Hall, a conductor in the service of the Great Northern Railway Company, was killed near Batavia, in Flathead county, this state, as the result of a derailment of his caboose consequent upon a collision of his train with a cow. This action, brought to recover for his death, resulted in a verdict against the company, upon which verdict judgment was duly entered. From that judgment, as well as from an order denying it a new trial, the company has appealed.

A reversal is sought upon four grounds, viz.: (1) The complaint alleges, but the proof does not establish, that Hall was employed in interstate commerce at the time of his death; (2) no actionable negligence on the part of the appellant is alleged or proved; (3) the evidence shows a clear case of assumed risk; and (4) substantial errors of law prejudicial to the appellant occurring at the trial.

1. The allegations of the complaint stamp the case as brought under the provisions of the federal Employers' Liability Act, and, to maintain it as such, evidence that at the time concerned the company was engaged and the decedent was employed in interstate commerce was indispensable. North Carolina R. R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159. The facts established touching this phase of the case are: The defendant company is a common carrier whose main line extends from St. Paul, Minn., to Puget Sound, Wash., traversing this and other states. It owns and operates a branch line called the Marion branch, running from its main line at Columbia Falls through Kalispell, Batavia, and Kila to Marion, and from this branch a shorter branch or tributary connects Kalispell with Somers. This Marion branch, with its tributary, lies wholly within Montana, but it is the source as well as the ultimate destination of both interstate and intrastate traffic. The decedent was killed while in charge of one of defendant's work trains; his particular duty with such train being to load ties from various places along the branch where they had been left by the persons who had cut the same, and to take the cars so loaded to Kalispell or leave them at Kila or other convenient siding. From such places of deposit the ties would later be taken by other trains to the defendant's tie-treating plant at Somers, whence, after treatment to increase their durability, they would be sent to various points upon the main line or branches of the appellant or its affiliated companies within or without this state as might be required for construction, renewals, or repairs.

Did the work of the decedent constitute employment in interstate commerce? The answer may be found, we think, in the decisions of that great tribunal whose pronouncements are final in matters of this kind, and particularly in Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153, cited by the respondent, where the following criterion is suggested:

"Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier?"

Interdependence to some extent pervades all activity, and it is true, for instance, that an interstate railroad cannot perform its functions without fuel or without ties; but this does not justify the inference that persons hired by it to mine coal or to cut ties are employed in interstate commerce. Delaware, L. & W. R. Co. v. Yurkonis, 238 U.S. 439, 35 S.Ct. 902, 59 L.Ed. 1397; Bravis v. Chicago, M. & St. P. Ry. Co., 217 F. 234, 133 C. C. A. 228. In the chain of events by which the standing timber should be connected with the appellant's roadbed the decedent was one step nearer to the latter than the man who furnished the ties; but considering that the decedent had nothing to do with the ties further than to load them upon cars, leaving the cars so loaded at convenient sidings to be removed by others, that the ties so loaded were not to be marketed or used, but were to be taken to Somers and made ready for use, that no one knew when, where or how they would ultimately be used, and that, so far as exigency or duty is shown, the appellant's interstate commerce might go on unaffected whether these ties were gathered or not, the connection of his work with such commerce still appears to have been rather remote. No case has been called to our attention which in its facts closely resembles the one at bar; but in Illinois C. Ry. Co. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163, it was held that employment in interstate commerce was not shown where the fireman of a switch engine operating within the city of New Orleans was killed while moving cars loaded with intrastate freight, notwithstanding that his general duties had to do with cars of all classes, often commingling those loaded with interstate freight and those empty or loaded with freight of an intrastate character, or rapidly passing from one class to the other. Accepting this as authoritative, we are impelled to the view that the decedent was not at the time of his death employed in interstate commerce, and therefore the action was not sustained under the federal Employers' Liability Act.

It does not follow from this however, that the appellant was or is entitled to a reversal. It is now settled that, where the complaint declares under the federal law, failure to sustain it under such law is not fatal, but recovery may still be had under the state law, if the pleadings and proof are sufficient under the state law. Wabash R. R. Co. v. Hayes, 234 U.S. 86, 34 S.Ct. 729, 58 L.Ed. 1226; Jones v. C. & O. Ry. Co., 149 Ky. 566, 149 S.W. 951. We recall but one respect in which a defendant can be seriously prejudiced in such a situation, and that is where, by reason of diverse citizenship, removal of the cause to the federal court might be in order. In such a situation, however, the defendant must assert its right, under penalty of waiver, by filing a petition to remove at the first opportunity. Powers v. Railway Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673; Kansas City, etc., Ry. Co. v. Daughtry, 138 U.S. 298, 11 S.Ct. 306, 34 L.Ed. 963; Golden v. Northern P. Ry. Co., 39 Mont. 435, 104 P. 549, 34 L. R. A. (N. S.) 1154, 18 Ann. Cas. 886; Dempster v. Oregon Short Line R. R. Co., 37 Mont. 335, 96 P. 717. This the appellant did not do; instead, and with the knowledge of its right to have the cause removed, it submitted to the jurisdiction of the state court in which the trial occurred, by seeking a dismissal for variance as well as for failure to show the breach by it of any legal duty to the decedent under either state or federal law.

2. The negligence charged in the complaint is the failure of appellant to fence its track at and near the place where Hall was killed, and thus to exclude cattle, the presence of which upon the track was likely to cause derailment of its trains, and in permitting its trains to be run over said track while the same was so unfenced. The questions raised upon the pleadings and the evidence are whether, under any circumstances, a railway company can owe any duty to its train operatives to shield them from whatever danger the presence of cattle upon its track may cause, by fencing such track, and, if so, whether facts sufficient were made to appear in this case to establish prima facie the existence of such duty. The appellant vigorously denies that any such duty ever exists, while the respondent contends that such duty may exist, and in the present instance did exist, not in virtue of the fencing statute of this state (Rev. Codes, § 4308), which was enacted for the benefit of stockowners (Nixon v. Montana, etc., Ry. Co., 50 Mont. 95, 145 P. 8), but in virtue of appellant's common-law obligation to exercise ordinary care to furnish its employés with a reasonably safe place in which to work. As regards the general proposition, the authorities are by no means harmonious, but we think the better reasoning supports the respondent's position. Speaking broadly, the obligations of a railway to its employés are not different in principle from those of other masters to their servants, and when the place of work to which the servant is detailed is the track or roadway of the master, the duty to exercise reasonable diligence to keep it safe should and does arise. Indeed, little, if any, difficulty is found in the application of this rule where defects in the track or roadway or inanimate obstructions are involved, and we cannot see why any should arise from the mere fact that the obstruction is animate.

"Unless a railway track is fenced, cattle are liable to stray upon it from adjacent fields and commons; cattle upon a railway track are liable to get run over by trains notwithstanding the vigilance of the engineer and other trainmen; engines and trains are frequently derailed by running over cattle upon the track; in such derailments trainmen are frequently killed or injured. These propositions of fact, which are abundantly borne...