Arizona Eastern R. Co. v. Matthews

• Decision Date: 16 April 1919
• Docket Number: Civil 1660
• Parties: ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Appellant, v. J. A. MATTHEWS, Appellee
• Court: Arizona Supreme Court

180 P. 159

20 Ariz. 282

ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Appellant, v. J. A. MATTHEWS, Appellee

Civil No. 1660

Supreme Court of Arizona

April 16, 1919

APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge. Reversed and remanded, with directions.

Mr. G P. Bullard, for Appellant.

Messrs Hawkins & Anderson, for Appellee.

OPINION

ROSS, J.

Appellee sued the appellant railroad company for damages for personal injury. Omitting formal parts, the complaint is as follows:

"III. That on or about April 5, 1916, defendant was by its servants and employees engaged in installing platform scales on a platform of defendant's freight depot located in the city of Phoenix, Arizona; that the work was not finished on that day, but by night of said day the work had progressed to such an extent that about eight square feet of said flooring of said depot platform had been removed and that said platform floor was about five feet from the ground, and when said flooring had been removed a pit was formed about eight feet wide, eight feet long, and five feet deep.

"IV. Plaintiff says that defendant left said pit thus formed as above stated during the night of April 5, 1916, unlighted, uncovered, unfenced, and otherwise unprotected at a place, vicinity, and time where and when its employees, and particularly this plaintiff, were required by defendant to work in and about said premises, and that the night of April 5, 1916, was quite dark.

"V. That on the night of April 5, 1916, plaintiff was in the course of his employment compelled to work all night for defendant at defendant's freight depot aforesaid, at manual labor as bill clerk, and that while so engaged at such manual labor between four and five o'clock A.M. of April 6th . . . he became so fatigued and hungry that it was necessary for him to have something to eat and some coffee, . . . and, in order to secure the same, he went to a nearby restaurant and then and there procured such refreshment and immediately started to return to such manual labor as such bill clerk for defendant, along the route usually traveled by plaintiff and others having business in and about defendant's freight depot, and that while so returning to his said work, and while at all times exercising due care and acting without negligence on his part, plaintiff stepped in said pit so left by defendant without any warning light or any kind of protection therefrom, and fell to the bottom of said pit, a distance of about five feet, . . . and was injured," etc.

Appellant demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action; also, on the ground that the employers' liability law (Civ. Code 1913, pars. 3098-3179) is unconstitutional in that it violates the Fourteenth Amendment to the federal Constitution. It answered by general denial, pleaded contributory negligence and assumed risk, and also raised the question of the constitutionality of the liability law.

At the close of the appellee's case in chief, the appellant moved the court to require him to elect whether he would ask a recovery under the Employers' Liability Act or under the common law. Whereupon, appellee announced (without any ruling of the court) his election to recover under the Employers' Act. Appellant then made the following motion:

"We desire to make a formal motion to instruct for the defendant upon the ground that the state Employers' Liability Act applies to those engaged inthe operation of a railroad, to those engaged in manual and mechanical labor, and that the uncontradicted evidence in this case shows that on the night in question, upon which it is claimed that plaintiff was injured, he was not engaged in any mechanical or manual labor and was not engaged to any extent in the operation of a railroad."

The motion being denied, appellant introduced its evidence, and, the case being submitted to the jury, it returned a verdict in favor of appellee for the sum of three thousand dollars. The appeal is prosecuted from the order overruling motion for a new trial and from the judgment. The assignments of error are numerous -- twenty-eight in number -- but it will not be necessary, from the view we take of the matter, to pass upon all of them.

The first assignment is based upon the ruling of the court in denying the motion for an instructed verdict. The evidence at the time of making the motion and at the close of the entire case was in confirmation of the allegations of the complaint that appellee was a bill clerk in the employ of appellant at its freight depot in the city of Phoenix. The appellee describes the nature and character of his work as follows:

"On or about April 5, 1916, I was employed as bill clerk for the Arizona Eastern Railroad Company, working at the local freight office situated between First Avenue and Center Street. My work was in the office, which is located in the west end of the building. My duties were billing freight, writing up the transfer book, making up tonnage reports, balancing the cash-books, making an abstract, loading and unloading livestock, and sprinkling down hogs during warm weather. . . .

"We sometimes had loading and inspection of livestock at the freight-house platform, but the bulk of it was at the union stockyards, located about 13 blocks west of the freight office, and in the yards of the Arizona Eastern, 12 blocks east of the freight office.

"I have been required to go out and inspect stock after it was loaded. I have used this platform at night in loading livestock, and in loading automobiles and all kinds of freight. . . . I never loaded any stock myself, but I had to make a livestock report and an inspection of them. They were loaded by the shipper from this platform.

"I don't do manual labor. I don't do manual labor at all when I was working for the Arizona Eastern. I was doing clerical work.

"It was my duty to go out and check in the loading of the stock.

"Between the time I went to work at half-past five on the evening of the 5th and the time when I was injured on the morning of the 6th, my duties were the regular duties of the office, billing and writing transfers and making abstracts, and that is all I now recall that I did between the hour I went to work and the hour I was injured. I was not handling any stock that night. The duties I refer to were clerical that night."

Keeping this evidence in mind, as also the allegations of the complaint as to the character of the work appellee was engaged in, we now turn to the Employers' Liability Act to see if he generally, or at the time of his injury, was embraced within its terms so as to entitle him to maintain an action thereunder for damages or compensation. If the cause of action set out in his complaint and the evidence on the trial do not bring the appellee within the terms of the Employers' Liability Act, he ought not to be permitted to recover upon his election.

The constitutional mandate contained in section 7, article 18, is that the legislature enact a law to make the employer liable for injuries to employees in hazardous occupations when the accident causing the injury is due to a condition or conditions of such hazardous occupation, and is not caused by the negligence of the employee; said law so to be enacted to apply to "all hazardous occupations in mining, smelting manufacturing, railroad or street railway transportation, or any other industry." Chapter 6, title 14, being paragraphs 3153 to 3162, inclusive, Civil Code of 1913, is the legislative effort to comply with the mandate of the Constitution. Hereafter we will refer to it as the "Liability Act."

This Liability Act has declared and determined in paragraph 3156 certain occupations in the named industries to be hazardous, and paragraph 3155 extends the benefits of the act only to those employees engaged in manual and mechanical labor.

Among other things, it is contended by appellant that appellee was not (1) employed in an occupation declared and determined to be hazardous, nor (2) engaged in manual or mechanical labor. As to the first point made, if appellee is to receive the benefits of the act, his occupation must be one of those enumerated in subdivision 1 of section 3156, which reads as follows:

"(1) The operation of steam railroads, electrical railroads, street railroads, by locomotives, engines, trains, motors, or cars of any kind propelled by steam, electricity, cable or other mechanical power, including the construction, use or repair of machinery, plants, tracks, switches, bridges, roadbeds, upon, over and by which such railway business is operated."

The arguments of both sides are directed to the first division of the subsection, it being the contention of appellant that appellee was not engaged in an occupation in "the operation of a railroad." Whereas appellee contends that a bill clerk's occupation is essential to the proper operation of a railroad and is within the occupations declared to be hazardous in the operation of appellant's railroad. We will not go into this question further than to say that, as we understand the law, those persons engaged in "the operationof a railroad" are persons who have an actual physical connection with the handling, organizing loading, unloading and movement of trains, locomotives, engines, motors and cars, extending sometimes to section-men. Jemming v. Great Northern Ry. Co., 96 Minn. 302, 1 L.R.A. (N.S.) 696, 104 N.W. 1079; Callahan v. Ry. Co., 170 Mo. 473, 94 Am. St. Rep. 746, 60 L.R.A. 249, 71 S.W. 208; 26 Cyc. 1370. It includes those whose occupations subject them to hazards and dangers incident to and inherent in the physical part of the operation of the railroad, and not those who perform...