Brier v. Chi., R. I. & P. Ry. Co.

Decision Date27 June 1918
Docket NumberNo. 32080.,32080.
Citation183 Iowa 1212,168 N.W. 339
PartiesBRIER v. CHICAGO, R. I. & P. RY. CO. ET AL.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Washington County; Henry Silwold, Judge.

Action under the federal Employers' Liability Act to recover on account of personal injuries. Verdict and judgment for the plaintiff. Defendants appeal. Affirmed.F. W. Sargent and J. G. Gamble, both of Des Moines, and Eicher & Livingstone, of Washington, Iowa, for appellants.

McCoy & McCoy, of Oskaloosa, and C. A. Dewey and W. H. Butterfield, both of Washington, Iowa, for appellee.

GAYNOR, J.

This action is brought to recover damages on account of personal injuries sustained by the plaintiff while in the employ of the defendant company and its receiver, J. M. Dickinson.

It is alleged that both plaintiff and defendant were at the time plaintiff received his injuries engaged in interstate commerce; that in furtherance of its interstate commerce and in the operation of its interstate trains defendant maintained and operated a line or lines of telegraph poles and wires along and on its right of way adjoining its main line track; that the plaintiff was employed by the company as a lineman, and his duties were to repair these lines under the direction of an agent or foreman; that he was so employed at the time he received his injury, September 21, 1915; that under the federal Employers' Liability Act defendant is liable to the plaintiff for the injuries.

It is alleged that the plaintiff at the time was on his way to assist in straightening some telegraph poles along the right of way; that he was being transported in a gasoline motorcar operated by the defendant company under its receiver; that the car furnished and used for that purpose was defective and out of repair; was constructed with two cylinders, one of which was so out of repair that it failed to work, thus making the car run with a jumping motion; that the car was operated at a high and dangerous rate of speed; that the car was overloaded; that it was constructed to carry but three men, while four were directed and allowed to ride upon it, all of which facts were well known to the company; that because of the defects in the car and high speed at which it was operated, overloaded as it was, the same was derailed, resulting in the injuries to the plaintiff of which he complains.

It is charged that he sustained injury to his left leg and ankle, and one of the lower bones of his left leg was broken, to wit, the fibula; that his back was injured, and several ribs were broken; that he was injured around and about his chest; that his nervous system was greatly impaired; that the injuriesso received were permanent; that as a proximate result of the injuries received he is, and will be in the future, unable to perform manual labor, or at least his ability is greatly impaired; that he has suffered great pain and anguish, and will continue to so suffer in the future. To this claim the defendant interposed a general denial. The cause was tried to a jury, and a verdict returned in favor of the plaintiff. Judgment being entered upon the verdict, defendant appeals. The defendant assigns several errors.

[1] It will be noted that the plaintiff brings this action under what is known as the federal Employers' Liability Act. To recover, therefore, the plaintiff must bring himself within the provisions of this act, and must show that both he and the defendant were at the time of the injury engaged in interstate commerce. The true test of employment in interstate commerce is: Was the employé at the time of the injury engaged in interstate transportation or any work so closely related to it as to be practically a part of it? Shanks v. Delaware, L. & W. Ry. Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797.

[2] The record shows that the foreman under whom plaintiff worked was instructed by the company to take this motorcar to a point along the defendant's line where the telegraph poles needed straigthening and to straighten them. These were poles on which wires were strung and used by the company in directing the operation of the trains. The defendant's road was used in carrying freight and passengers between different states. Plaintiff was taken by the foreman to do the work so directed to be done, and was on his way to the places where these poles were at the time he received his injury. He was not actually engaged in straightening the poles at the time he received his injury, but was on his way, in company with the foreman, to do the work of straightening them. The question arises: Was the employment of the plaintiff connected with interstate commerce so as to bring him within the federal Employers' Liability Act?

In Ross v. Sheldon, 176 Iowa, 618, 154 N. W. 499, a question very similar to the one here under consideration was before that court. In that case the action was brought under the state law. The defense then interposed was that decedent was engaged in interstate commerce at the time he received his injuries, and that his rights were governed by the federal act. In that case, as in this, the plaintiff was a lineman and was injured. The railway was operated by electricity. The poles were along the line, and on these poles were cross-arms. Upon the cross-arms were wires. The defendant was engaged in putting additional cross-arms upon the poles. While at work in nailing cross-arms upon the poles, he was killed by contact with a live wire. The claim of the defendant was that the poles and cross-arm and signal wires were a part of the necessary instrumentalities of defendant's interstate commerce, and that the injury to the decedent occurred while he was engaged in the work of repair and maintenance. This court said:

“The federal act in question laid upon the defendant, as a carrier of interstate commerce, not only the duty of mere repair, but the duty to maintain sufficiency in its equipment. The most that can be said in concession to the appellant is that the defendant was engaged in curing a ‘sufficiency of equipment,’ and that the decedent was engaged in work to that end. We reach the conclusion that the evidence brings the case within the operation of the federal act, * * * and that this action, brought by the plaintiff under the state laws, was properly dismissed for that reason.”

We think that case governs this. The only fact that distinguishes it at all is the fact that this plaintiff was not at the time of the injury actually engaged in the repair of the instrumentality necessary to interstate traffic. This, however, we think, is not a distinguishing factor.

In Pedersen v. Railway Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, it appears that the injured party, an iron worker, employed by the defendant in the alteration and repair of bridges under the direction of a foreman, was carrying from a tool car to a bridge some bolts or rivets which were to be used that night or very early the next morning in repairing that bridge. He had not actually begun the work of repair, but was on his way to the bridge carrying with him these bolts or rivets to be used in making the repairs. He was run down and injured by an intrastate passenger train. It was held that the plaintiff's employment brought him within the purview of the federal Employers' Liability Act, and he was permitted to recover. In that case it was said:

“The point is made that the plaintiff was not, at the time of his injury, 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 materials to be used therein. We think there is no merit in this. 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.”

See, also, St. Louis, San Francisco & Texas Ry. Co., 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156. In that case deceased was a yard clerk. His principal duties were examining incoming and outgoing trains, making records of numbers and initials on cars, inspecting seals on the doors, checking cars, and supplying conductors with lists. At the time of his injury and death, he was on his way through the yard to meet an incoming freight train. His purpose in going to the train was to take the numbers of cars, and otherwise perform his duties in respect to them. While so going to his work, he was injured. It was held that his employment brought him under the federal Employers' Liability Act, though this particular question was not discussed in the opinion. See North Carolina Railroad Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159. In that case we find the following:

“Again, it is said that because deceased had left his engine and was going to his boarding house he was engaged upon a personal errand, and not upon the carrier's business. Assuming (what is not clear) that the evidence fairly tended to indicate the boarding house as his destination, it nevertheless also appears that deceased was shortly to depart upon his run, having just prepared his engine for that purpose, and that he had not gone beyond the limits of the railroad yard when he was struck. There is nothing to indicate that this brief visit to the boarding house was at all out of the ordinary, or was inconsistent with his duty to his employer. It seems to us clear that the man was still ‘on duty,’ and employed in commerce, notwithstanding his temporary absence from the locomotive engine.”

In the case under consideration preparation had been made to go to the place where the interstate work was to be accomplished, and plaintiff was on his way with tools...

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3 cases
  • Lloyd v. Alton Railroad Co.
    • United States
    • Missouri Supreme Court
    • November 1, 1943
    ... ... Payne, 269 Fed. 1; Montgomery v. Term. Railroad Assn., 73 S.W. (2d) 236, 335 Mo. 348; Hines v. Logan, 269 Fed. 105; Milburn v. Chi., etc., R. Co., 56 S.W. (2d) 80, 331 Mo. 1171; Geiseking v. Litchfield, etc., R. Co., 94 S.W. (2d) 375, 339 Mo. 1; Glover v. Union Pac. R. Co., 21 ... 292; Hughes Bros. Timber Co. v. State of Minn., 272 U.S. 469, 47 Sup. Ct. 170; N.Y., etc., R. Co. v. Carr, 238 U.S. 260, 35 Sup. Ct. 780; Brier v. Chi., etc., Ry. Co., 168 N.W. 339; Brown's Admstr. v. N. & W. Ry. Co., 12 Fed. (2d) 319, affirmed 20 Fed. (2d) 133, certiorari denied, 48 Sup. Ct ... ...
  • Lloyd v. Alton R. Co.
    • United States
    • Missouri Supreme Court
    • November 1, 1943
    ... ... Payne, ... 269 F. 1; Montgomery v. Term. Railroad Assn., 73 ... S.W.2d 236, 335 Mo. 348; Hines v. Logan, 269 F. 105; ... Milburn v. Chi., etc., R. Co., 56 S.W.2d 80, 331 Mo ... 1171; Geiseking v. Litchfield, etc., R. Co., 94 ... S.W.2d 375, 339 Mo. 1; Glover v. Union Pac. R ... Timber Co. v. State of Minn., 272 U.S ... 469, 47 S.Ct. 170; N. Y., etc., R. Co. v. Carr, 238 ... U.S. 260, 35 S.Ct. 780; Brier v. Chi., etc., Ry ... Co., 168 N.W. 339; Brown's Admstr. v. N. & W ... Ry. Co., 12 F.2d 319, affirmed 20 F.2d 133, certiorari ... denied, 48 ... ...
  • Brier v. Chicago, Rock Island & Pacific Railway Co.
    • United States
    • Iowa Supreme Court
    • June 27, 1918

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