Bumstead v. Missouri P. Ry. Co.

• Decision Date: 06 January 1917
• Docket Number: 20598
• Citation: 162 P. 347,99 Kan. 589
• Parties: BUMSTEAD v. MISSOURI PAC. RY. CO.[a1]
• Court: Kansas Supreme Court

162 P. 347

99 Kan. 589

BUMSTEAD v. MISSOURI PAC. RY. CO.^[a1]

No. 20598

Supreme Court of Kansas

January 6, 1917

Syllabus by the Court.

The plaintiff was a freight conductor whose usual run was from Wichita to Durand and return. He came to Durand on the morning of January 5, 1915, with a train of interstate cars registered in what is called the “rest book,” got lunch, went to his caboose, and finished up his reports, and then went to bed in the caboose, as he had done for some 14 years. At the expiration of 8 hours and 30 minutes he was liable at any time to be called. The yardmaster had full charge as to making up the trains, and knew from the registry where the plaintiff was, and would have him called. About 7 o’clock that evening the yard clerk––an employé of the defendant who knew the plaintiff was staying in the caboose––called him to leave with his train about 8:15 or 8:30. The plaintiff was required to report for duty 30 minutes before his train was to leave, when he would go and get his orders and get ready to go out. His time began when the train started. After being called and while dressing preparatory to going and getting something to eat and then reporting for duty, the crew making up his train moved certain cars, part of them interstate, against the caboose so violently as to injure him. Held, that he was not at the time engaged in service in interstate commerce within the terms of the federal Employers’ Liability Act (Act. Cong. April 22, 1908 c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657–8665]).

Appeal from District Court, Sedgwick County.

Action by J. E. Bumstead against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions to enter judgment for defendant.

W. P. Waggener and A. E. Crane, both of Atchison, J. C. Bentley, of Wichita, and W. E. Brown, of Atchison, for appellant.

Adams & Adams, of Wichita, for appellee.

OPINION

WEST, J.

The plaintiff recovered a judgment for damages alleged to have been caused by the negligence of defendant’s agents and servants in moving certain freight cars against the caboose, in which he was at the time, with such violence as to cause him serious injury. The action was under the federal Employer’s Liability Act. The defendant appeals, and assigns error in giving and refusing instructions and in overruling its motion for a new trial. The main contention, however, is that under the evidence it was error to instruct or find that the plaintiff, at the time of the injury, was engaged in interstate commerce.

Aside from this matter a careful examination of the record discloses no material error.

It is conceded that in order for the plaintiff to recover, both parties must at the time of the injury, have been engaged in interstate commerce. The salient facts of the case are that the plaintiff was a conductor of one of the defendant’s freight trains from Wichita to Durand. On the morning of January 9, 1915, he arrived at Durand with his train, containing about 22 cars, destined for Missouri, Texas, and Louisiana. He registered in what is called the "rest book," got lunch, went to his caboose, and finished up his reports, which took 20 or 30 minutes, and then went to bed in the caboose, as he had done for some 14 years. At the expiration of 8 hours and 30 minutes after arrival he was liable at any time to be called. About 7 o’clock that evening he was called to leave with his train about 8:15 or 8:30. At about 7:15 or 7:20 the collision occurred. He was required to report for duty 30 minutes before his train was to leave, which that night would have been about 7:45. When reporting for duty it was his task to go to the yard office, get the bills and other orders, and get ready to go out on his run. When the collision occurred he was dressing preparatory to going and getting something to eat and then reporting for duty. Durand had very slight accommodations, and it had been and was the custom for the trainmen to sleep in the caboose. There were interstate cars on the train that injured him. The collision occurred while making up the train on which the plaintiff was to run as conductor, and which contained interstate cars.

The plaintiff testified that:

"Thirty minutes before the train would go, I would go out and get our orders and get ready to go out. Our time begins at the time the train starts. The time it is called to leave."

The yardmaster had full charge as to making up trains, and knew from the registry where the plaintiff was, and would have him called. The yard clerk called him on this occasion. He was one of the employees of the defendant, and knew the plaintiff was staying in the caboose. The plaintiff was therefore an employé of the company, having come in and preparing to go out with an interstate train, although his pay would not begin until the starting of the return train. Was he at the time of the injury engaged in service in interstate commerce? The language of the act (35 U.S. Stat. at Large, pt. 1, p. 65, § 1 [[[[U. S. Comp. St. 1913, § 8657]) is:

"That every common carrier by railroad while engaging in commerce between any of the several states....shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce...."

The test has been thus stated by the Supreme Court of the United States:

"Was the employe, 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?" Shanks v. Del., Lack. & West. R. R., 239 U.S. 556, 558, 36 S.Ct. 188, 189, 60 L.Ed. 436, L. R. A. 1916C, 797.

See, also, Chi., Burlington & Q. R. R. v. Harrington, 241 U.S. 177, 180, 36 S.Ct. 517, 60 L.Ed. 941.

To support his contention that he was within the terms of the act, the plaintiff cites a list of decisions, each of which we have examined. Pedersen v. Del., Lack. & W. R. R., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153; M., K. & T. Railway Co. of Texas v. United States, 231 U.S. 112, 34 S.Ct. 26, 58 L.Ed. 144; Mondou v. N.Y., N.H. H. R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L. R. A. (N. S.) 44, and N.Y. Central & H. R. Co. v. Carr, 238 U.S. 260, 35 S.Ct. 780, 59 L.Ed. 1298, were cases so different from this as to the facts involved that their extended notice could avail nothing. The same may be said of Southern Ry. Co. v. Jacobs, 116 Va. 189, 81 S.E. 99; Findley v. Coal & Coke Ry. Co. (W. Va.) 87 S.E. 198, and Bruckshaw v. Chicago, R.I. & P. Ry. Co. (Iowa) 155 N.W. 273. The others we will refer to briefly. A fireman in the employ of an interstate railway carrier, after inspecting, oiling, firing, and preparing his engine for an intrastate movement of a train containing some interstate cars, was killed by a switch engine while he was attempting to cross the tracks between the engine and his boarding house. North Carolina Ry. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159. The evidence tended to show that a train had come into a place in North Carolina from a point in Virginia; that a shifting crew were working the train so as to take two cars from it to be moved between two points in North Carolina by the engine on which the deceased was employed as fireman for the trip that was about to begin, and had already prepared his engine for the purpose. In answer to the argument that his employment had not begun it was said:

"It seems to us, however, that his acts in inspecting, oiling, firing, and preparing his engine for the trip to Selma were acts performed as a part of interstate commerce, and the circumstance that the interstate freight cars had not, as yet, been coupled up is legally insignificant." 232 U.S. 260, 34 S.Ct. 309 (58 L.Ed. 591, Ann. Cas. 1914C, 159).

It was also said that, assuming that when injured he was going to his boarding house, it also appeared that he was shortly to depart upon his run, having just prepared his engine for the 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." 232 U.S. 260, 34 S.Ct. 309 (58 L.Ed. 591, Ann. Cas. 1914C, 159).

It was held that there was at least evidence sufficient to go to the jury. The United States Circuit Court of Appeals of the Ninth Circuit held in Lamphere v. Oregon R. & Nav. Co., 196 F. 336, 116 C. C. A. 156, 47 L. R. A. (N. S.) 1, that a locomotive fireman in the employ of a railroad company engaged in interstate commerce, ordered by his superiors to report at a station to be transported to another station to relieve the crew of an interstate train, and who, when approaching the station over a crossing, was struck and killed through the negligence of other servants of the company also operating an interstate train was employed in interstate commerce at the time of his death. It was said in the opinion that the test is:

"What is its effect upon interstate commerce? Does it have the effect to hinder, delay, or interfere with such commerce? As applied to the present case, it is this: Was the relation of the employment of the deceased to interstate commerce such that the personal injury to him tended to delay or hinder the movement of a train engaged in interstate commerce? To that question we think there can be but one answer. Under the imperative command of his employer, the deceased was on his way to relieve, in the capacity of a fireman, the crew of a train which was carrying interstate commerce, and the effect of his ...