Arizona Eastern Railroad Co. v. Head

• Decision Date: 07 February 1924
• Docket Number: Civil 2133
• Citation: 26 Ariz. 137,222 P. 1041
• Parties: ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Appellant, v. CHARLES HEAD, Appellee
• Court: Arizona Supreme Court

222 P. 1041

26 Ariz. 137

ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Appellant, v. CHARLES HEAD, Appellee

Civil No. 2133

Supreme Court of Arizona

February 7, 1924

APPEAL from a judgment of the Superiro Court of the County of Maricopa. R.C. Standord, Judge. Order remittitur to be filed, otherwise judgment to be reversed with directions for new trial.

See also, infra, p. 259, 224 P. 1057.

Mr. G P. Bullard, for Appellant.

Messrs Cox & Moore, for Appellee.

OPINION

ROSS, J.

This action was brought by Charles Head against the Arizona Eastern Railroad Company to recover damages for personal injuries suffered by him while he was engaged in helping to unload a carload of cross-ties from a flat car located on a passing track of defendant at Queen Creek Station, Arizona.

The complaint alleges a cause of action under the Employers' Liability Law of this state (chapter 6, title 14, C.C. 1913) and does not therefore charge defendant with any negligence whatever. The answer denies the allegations of the complaint and alleges facts to establish that at the time of the injury plaintiff and defendant were engaged in interstate commerce. It also alleges that plaintiff's injury was caused by his own negligence and that at all events he assumed the risks.

The contention, therefore, on the one hand, was that the case was governed by the state law, and, on the other, by the federal Employers' Liability Act (8 Fed. Stats. Ann. [2d ed.], p. 1208 [U.S. Comp. Stats., §§ 8657-8665]). The distinction is very material for the reason that if plaintiff was at the time of his injury in intrastate service the local law entitles him to recover regardless of whether defendant was at fault or not; but, if in interstate service, defendant would have the right to avail itself of certain common-law defenses.

The case was tried and submitted to the jury in accordance with plaintiff's theory. The defendant at the close of the case moved for a directed verdict upon the ground that the evidence showed that plaintiff's employment at the time of his injury was interstate and not intrastate, and upon the submission of the case to the jury defendant presented to the court, in various forms, requests for peremptory directions to the jury to find for it on the same ground, all of which were denied. The verdict was for $10,500 in favor of plaintiff, upon which judgment was entered. Defendant's motion for a new trial was denied.

The only question is whether the facts bring the case within the Employers' Liability Act of this state, for if they do not the plaintiff is without remedy because he neither alleges nor proves facts sufficient to constitute a cause of action under the federal Liability Act.

The defendant's line of railroad is about 100 miles long and lies entirely within the state of Arizona, extending from Phoenix to Christmas. Between the termini and thirty-five miles from Phoenix is Queen Creek Station, the place where plaintiff was hurt. Plaintiff was employed as a section-hand, his duties being to help keep defendant's track in repair and to do in that connection whatever the section-foreman of the Queen Creek section directed him to do.

On February 15, 1922, the defendant caused to be placed on its passing track at said station a carload of cross-ties, probably 250 to 500 in number. The day following plaintiff with four other section-hands was by the foreman put to unloading the car, and while doing so one of the ties on which he was standing turned and caused him to fall to the ground, some eight or ten feet, injuring him. These ties were sent to the Queen Creek Station upon the request of the section-foreman, and were to be used for repairs to defendant's main line track. The rule in that regard was stated by defendant's general manager in the following language:

"After the roadmaster goes over the road and inspects the track, and after consulting with the engineer and maintenance of way man and foreman, they agree between them how many ties the foreman may need for renewal, and then it is arranged to buy and ship ties to the section."

After these ties were unloaded, they were piled or stacked near the passing track and about 100 yards from the station toolhouse. They were put there to be distributed and used over fourteen miles of track and were all placed in track by March 14, 1922; and after this load was used up another was ordered for Queen Creek.

There is no question but that the ties were for the repair of the main line track and were to be used for renewals. They were as a matter of fact placed in the track within the next thirty days after February 16th by the regular section-men of the Queen Creek section. We gather from the testimony that these ties were left at the section quarters at the Queen Creek Station to be used wherever necessary to replace other ties. The general manager said:

"Where the men were quartered at Queen Creek we kept other things like bolts, guard-rails and things like that at the section house. For the same purpose as ties, for the repairs to the track."

He further testified that the rule was that cross-ties were usually unloaded where they were to be used, and for that reason they would not leave them at the section-house.

Although defendant is an intrastate railroad, evidence was introduced showing that it does an interstate business, in that shipments originate on it to points outside the state, and, conversely, shipments outside the state are billed directly over it to points in the state. There is no evidence as to where the carload of ties originated, and since the burden of proof is on the one who asserts its interstate character (18 R.C.L. 856, § 316), for the purposes of this case it will be assumed it originated in Arizona and that those engaged in its unloading were in that act employed in intrastate commerce. If plaintiff's work at the time he was injured can be considered work in interstate commerce, it is not because the ties he was unloading were an interstate shipment, but because of the ultimate purpose of defendant to use them in its roadbed to replace other ties that had become unsafe for the traffic; and this, we think, is the contention of the defendant.

It is asserted that because defendant's track was used in transporting intrastate and interstate commerce, and because these ties were to be used immediately in repairing the main line track, and were in fact placed therein as soon as possible, the plaintiff in the act of unloading the ties was engaged in work so closely related to interstate commerce as to be practically a part of it. The question thus presented is not without its difficulties, made so largely because the courts, wherever it has arisen, have not always come to the same conclusion. In one respect the courts seem to agree, and that is that the true test of employment in interstate commerce, in the sense intended by the federal Employers' Liability Act, is:

"Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?"

This test was first announced in Shanks v. Delaware L. & W.R. Co., 239 U.S. 5556, L.R.A. 1916C, 797, 60 L.Ed. 436, 36 S.Ct. 188, (see, also, Rose's U.S. Notes), and because of its aptness has been frequently employed by other courts. It is the application of the facts to this test that has confused and baffled the courts.

It seems perfectly sound to say plaintiff was not in the unloading of the ties engaged in interstate commerce, and that if it be determined that his employment falls within the federal liability law it is because of the purpose ultimately to us the ties in repairing a railroad track in use in transporting both interstate and intrastate freight and passengers.

In the Shank case it was assumed, and the assumption was predicated upon prior decisions cited, that any employee "employed . . . in repairing or keeping in usable condition a roadbed, bridge, engine, car, or other instrument then in use in such transportation" was engaged in interstate commerce. The court cited Pedersen v. Delaware L. & W.R. Co., 229 U.S. 146, Ann. Cas. 1914C, 153, 57 L.Ed. 1125, 33 S.Ct. 648, 3 N.C.C.A. 779 (see, also, Rose's U.S. Notes), as authority that one employed "in repairing or keeping in usable condition a roadbed, bridge, . . . then in use in such transportation," was engaged in work in interstate commerce. On that particular question the Pedersen case is the one mostly quoted and relied upon by the courts throughout the country. The rule announced in it is invoked by the defendant as decisive of this case. In the Pedersen case the plaintiff at the time he was injured was carrying from a tool-car to a bridge some bolts or rivets which were to be used by the employees that night or very early the next morning in repairing the bridge; the repair to consist in taking out an existing girder and inserting a new one. As against the railroad's contention that Pedersen was not employed in interstate commerce, the court held that he was and that the fact that when injured he was not actually engaged in removing the old girder and inserting the new one, but was merely carrying to the place where that work was to be done some of the material to be used therein, was immaterial. It was said:

"It was necessary to the repair of the bridge that the materials be at hand, and the act of taking them there was a part of that work. In other words, it was a minor task which was essentially a part of the larger one, as is the case when an engineer takes his engine from the roundhouse to the track on which are the cars he is to haul in interstate commerce."

If the use of the cross-ties, the plaintiff was unloading when he was hurt, had been as definitely...