Bennor v. Oregon-Washington R. & Nav. Co., 24726.

• Decision Date: 18 December 1933
• Docket Number: 24726.
• Citation: 27 P.2d 1082,175 Wash. 559
• Court: Washington Supreme Court
• Parties: BENNOR v. OREGON-WASHINGTON R. & NAV. CO.

27 P.2d 1082

175 Wash. 559

BENNOR v. OREGON-WASHINGTON R. & NAV. CO.

No. 24726.

Supreme Court of Washington

December 18, 1933

Department 1.

Appeal from Superior Court, Spokane County; J. B. Lindsay, Judge.

Action by Joseph Bennor against the Oregon-Washington Railroad &amp Navigation Company. From a judgment dismissing his action plaintiff appeals.

Affirmed.

John H Roche, of Spokane, for appellant.

A. C Spencer, of Portland, Or., and Hamblen, Gilbert & Brooke and H. M. Hamblen, all of Spokane, for respondent.

MILLARD, Justice.

A group of defendant's employees, designated 'repair gang,' on a work train, moved from place to place wherever needed to perform certain work (putting in rails ties, and gravel and raising the tracks) along the line of defendant's interstate railroad. Joseph Bennor was employed as an assistant cook--he termed himself 'bull cook'--in that repair gang. He testified as follows concerning the duties required of him: 'They call in bull cook,--taking the stuff into the cars, you see, the canned supplies, handling those for the cook, and it is up to the cook to do the work. I was bull cook and took coal and oil and water and swept out the car, kept the fires, doing the roustabout work outside, but had nothing to do inside with the cook, any more than bringing the stuff there.'

On or about the first part of February or March, 1930, while carrying a quarter of beef from the railroad station at Hooper downstairs to the boarding cars of the work train, Bennor fell and was seriously injured. Bennor's fall was caused by the bending down of the front half of the fourth step of the stairway as Bennor attempted to proceed downward to the next step. More than two years thereafter, Bennor commenced this action to recover for the personal injuries sustained by him as a result of his fall.

At the close of plaintiff's case, defendant interposed a motion for dismissal of the action. One of the grounds upon which the motion was based was that, as it came within the Federal Employers' Liability Act, the action was barred by the two-year statute of limitations.

'No action shall be maintained under this chapter unless commenced within two years from the day the cause of action accrued.' 45 USCA c. 2, § 56, p. 515.

The motion was granted. The plaintiff has appealed.

The cause of action accrued the first part of February or March, 1930, and this action was not commenced until more than two years thereafter. It follows that if, at the time he was injured, appellant's work as bull cook for the repair gang on respondent's interstate railroad was so closely related to interstate transportation as to be practically a part of it, the appellant was employed in interstate commerce and the action is within the purview of the Federal Employers' Liability Act (45 USCA §§ 51-59, 35 Stat. 65, 36 Stat. 291); therefore, under section 56, above quoted, the action cannot be maintained.

The question whether the appellant...