Archibald v. Northern P. R. Co.

• Decision Date: 06 August 1919
• Docket Number: 15256.
• Citation: 183 P. 95,108 Wash. 97
• Court: Washington Supreme Court
• Parties: ARCHIBALD v. NORTHERN PAC. R. CO. et al.

183 P. 95

108 Wash. 97

ARCHIBALD v. NORTHERN PAC. R. CO. et al.

No. 15256.

Supreme Court of Washington

August 6, 1919

Department 1.

Appeal from Superior Court, Spokane County; D. H. Carey, Judge.

Action by M. D. Archibald against the Northern Pacific Railroad Company and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Plummer & Lavin, of Spokane, for appellant.

Cannon & Ferris and F. J. McKevitt, all of Spokane, for respondents.

MACKINTOSH J.

For a period of 16 months the appellant had been employed in the repair shop of the respondent as a machinist's helper and while so employed, one afternoon about 4 o'clock, he was assisting one Jonston, a machinist, in shaping a forging to be fitted upon an engine frame. In order to properly perform this work, Johnston was chiseling the forging, having marked it where it was to be chipped, and having set it in a vise. The tools used were the ordinary cold chisel and hammer. While Johnston was chiseling, the appellant was standing at Johnston's right, holding a torch in his right hand to enable Johnston to see the work he was engaged upon. At the time this particular work had been commenced Johnston had warned the appellant of the danger to his eyes from flying particles of steel, and had told him to keep his eyes covered with one hand while holding the torch with the other. The appellant had heeded this warning by keeping the gloved left hand over his eyes. When the work had progressed for 15 or 20 minutes, and had arrived at a point where the forging was to be chipped back, it became necessary for Johnston and the appellant to change places. Johnston ordered the appellant to shift his position so as to pass to Johnston's left side, and while getting into this position he changed, or was in the act of changing, the torch to his left hand, and Johnston, in the meantime, having recommenced his work from his new position, in striking the chisel caused a flying piece of steel to become lodged in the appellant's eye; this being the injury for which the action was commenced.

The allegations of negligence state that Johnston, without warning to the appellant and while he was changing his position as he had been directed to, and changing the torch as it became necessary by reason of the changed position carelessly struck the chisel before the appellant had an opportunity to change the torch and thus free his right hand so that it might be used in protecting his eyes. A nonsuit having been granted, appellant is here and presents four questions for decision.

1. The complaint pleads a cause of action under the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St.§§ 8657-8665]), and contains no statement under separate and distinct counts under the state law. By the enactment of the Legislature of 1917, contained in chapter 28, § 19, the appellant and respondent have the same rights and are under the same liabilities and are subject to the same rules of evidence and the same defenses, whether the action be prosecuted under the federal Employers' Liability Act or the state law; that is, the state law has established the same rules of evidence and procedure for actions against carriers engaged in both interstate and intrastate commerce as is provided by the federal Employers' Liability Act in the case of interstate carriers. The complaint in this case made allegations that at the time of the injury the respondent was engaged in interstate commerce, but the proof failed to establish this fact, and the appellant now tacitly admits that he did not bring himself within the provisions of the federal Employers' Liability Act. The respondent's claim is that the appellant, having elected to sue under the federal act, was not entitled to have his case go to the jury when he failed to prove that he came within the operation of that act, although the testimony established a cause of action under the state laws. The complaint was drawn broadly enough to entitle the plaintiff to relief under the federal Employers' Liability Act, and by its terms it was drawn under that act; there being no separate cause of action alleged under the state act. There is no question of the respondent having lost any right it may have had to move the case to the federal court for trial. All the proof introduced was equally material and proper to establish a cause of action under either the federal or the state law, and under both laws the respondent was entitled to and limited to the same defenses. The appellant failed to satisfactorily prove that he was such employé as was protected by the federal act, but did establish by his proof that he was such an employé as was protected by the state act. This situation presents squarely for our determination the question of whether such conditions constitute a variance and failure of proof, warranting the dismissal of the action.

In Baird v. Northern Pacific Railway, 78 Wash. 68, 138 P. 325, this court had under consideration a question very similar to this. There was a cause of action stated under both the federal act and common law, and the parties had treated it, however, as a common-law action; and while different issues and defenses were possible under the federal act and at common law, yet the court said:

'There is no decision, so far as we are advised, which holds that, where a complaint states facts sufficient to show a liability at common law, proof admissible thereunder should be excluded on the ground of variance merely because the complaint also alleges that the railroad company was engaged in interstate commerce, and that the injured person was, at the time of the injury, engaged in work in aid of such commerce.'

And further in the same case:

'Obviously, if, as held in the last-quoted decision [ Jones v. Chesappeake & Ohio Ry. Co., 149 Ky. 566 (149 S.W. 951)], the federal act did not repeal, but only superseded, the common law in a proper case, then, in a case such as here presented, where both the complaint and proof showed that the appellant was not, at the time of his injury, engaged in any act connected with interstate commerce, but did state facts sufficient to show a right of recovery under the common law, it would have been positive error not to submit the case to the jury upon that theory.'

The reasoning of the Baird Case, applied to the facts of the case at bar, must lead to the conclusion that where, under the federal act and state law, the parties stand in exactly the same relation to each other and an action between them is subject to the same rules, under a complaint broad enough to cover both laws, the plaintiff is entitled to have his case proceed, if there is sufficient proof to entitle him to recovery under either the act or the state law, notwithstanding the fact that his complaint may have indicated that it was based on the federal act.

Corbett v. Boston & Maine Railroad, 219 Mass. 351, 107 N.E. 60, although it relates to two concurrent actions brought under the federal act and under the Massachusetts act, contains reasoning that is apropos to our discussion:

'It [the federal act] does not undertake to affect the force of the state statute in its appropriate sphere. The state law is as supreme and exclusive in its application to intrastate commerce as is the federal law to interstate commerce. If the employé of a railrolad engaged in both interstate and intrastate commerce is injured or killed while in the former service, the carrier's liability is controlled and must be determined solely by the federal law; if in the latter service, such liability rests wholly upon the state law. * * * The facts and not the pleadings determine whether the wrong done in any given case confers a right to recover under the federal or state statute. The allegations in the plaintiff's declarations in these two actions do not constitute the test whether the jurisdiction of the court is under the federal or state statute. These simply are the basis for a judicial inquiry into the facts, which alone can determine that question. It is a familiar principle that, where inconsistent courses are open to an injured party and it is doubtful which ultimately may lead to full relief, he may follow one even to defeat and then take another, or he may pursue all concurrently, until it finally is decided which affords the remedy. The assertion of one claim which turns out to be unsound, so long as it goes no further, is simply a mistake. It is not and does not purport to be a final choice, nor an election. A party is not obliged to select his procedure at his peril. * * * This rule has been followed frequently in actions where it was doubtful whether the remedy of the plaintiff was under our Employers' Liability Act or at common law. * * * It is equally applicable to the cases at bar. The principle is not changed in any material respect because the question relates to remedies afforded by the statutes of different sovereign powers, each exclusive within its own domain. The relief is sought in the same forum, for the state court has jurisdiction of the cause of action, whichever statute may be controlling. * * * There are strong practical considerations in the administration of justice which lead to the same result. It oftentimes would be a great hardship upon the parties to compel them to try out first the question whether the federal act applies, and, if it in the end shall be decided that it does not, then to test by further litigation their rights under the state statute. The short period of limitations provided in each act often might expire before a final decision could be reached. If adverse to the plaintiff on the ground of error in the form of relief sought, he thus might be barred from a

...