Chi., M., St. P. & P. R. Co. v. Indus. Comm'n

• Citation: 258 N.W. 608,217 Wis. 272
• Parties: CHICAGO, M., ST. P. & P. R. CO. v. INDUSTRIAL COMMISSION ET AL.
• Decision Date: 05 February 1935
• Court: Wisconsin Supreme Court

217 Wis. 272

258 N.W. 608

CHICAGO, M., ST. P. & P. R. CO.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

Feb. 5, 1935.

Appeal from a judgment of the Circuit Court for Dane County; A. C. Hoppmann, Circuit Judge.

Affirmed.

Action commenced by the Chicago, Milwaukee, St. Paul & Pacific Railroad Company against the Industrial Commission, Helen Mueller, and others to set aside an award made by the Commission for the payment of compensation by the plaintiff for the death of Paul Mueller. The Circuit Court entered judgment vacating the award, and the Industrial Commission appealed.

James E. Finnegan, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for appellant.

Bender, Trump & McIntyre, of Milwaukee, for respondent.

FRITZ, Justice.

[1] The Industrial Commission contends that the circuit court erred in setting aside an award for compensation to be paid by the plaintiff, the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, for the death of Paul Mueller as the result of injuries sustained on June 11, 1932, while in the employment of the plaintiff. The only question on this appeal is whether the commission erred in holding that under the facts, which are undisputed, Mueller was not engaged, at the time of his injury, in interstate transportation or commerce. It is conceded that, if he was then engaged in such transportation, the Federal Employers' Liability Act (45 USCA §§ 51-59; U. S. Comp. St. §§ 8657-8665) is applicable and that the State Compensation Act (St. 1931, § 102.01 et seq.) is inapplicable. St. Louis, San Francisco & Texas Railway Co. v. Seale, 229 U. S. 156, 158, 33 S. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156;Kalashian v. Hines, 171 Wis. 429, 435, 177 N. W. 602;Northern Pacific R. Co. v. Industrial Comm., 200 Wis. 243, 246, 227 N. W. 948. It is also conceded that whether work which an employee was doing when injured was so closely related to interstate transportation as to be a part of it depends solely upon the nature of the work in which he was engaged at the time of his injury. Efaw v. Industrial Comm., 200 Wis. 137, 141, 227 N. W. 249;Sheboygan Airways, Inc., v. Industrial Comm., 209 Wis. 352, 361, 245 N. W. 178;New York, N. H. & H. R. Co. v. Bezue, 284 U. S. 415, 52 S. Ct. 205, 76 L. Ed. 370, 77 A. L. R. 1370, 1373.

Mueller, Fred L. Dettman, and others were in the employment of the plaintiff at one of its freight depots and platforms in Milwaukee to load and unload freight shipped in either intrastate or interstate commerce. When articles brought on shippers' trucks to plaintiff's depot for shipment were too heavy to be unloaded by the shipper's employees, it was customary for the plaintiff to have its employees, such as Mueller and Dettman, assist in such unloading, and to use, in that connection, appliances provided by the plaintiff. In accordance with that custom, Dettman and Mueller were assisting, at the time of the latter's injury, in unloading a boiler, weighing 650 pounds, from a truck, on which it had been brought to plaintiff's depot by Ray Gerhardt, an employee of the Milwaukee Reliance Boiler Works, for shipment to Kansas City, Mo., under a proposed bill of lading, which had been prepared, as customarily, by the shipper, to be issued by the plaintiff upon the unloading of the freight on plaintiff's platform. Upon arriving at the depot, Gerhardt told plaintiff's employee, who was in charge, that the boiler was to be shipped to Kansas City, and that employee directed where it was to be unloaded on to plaintiff's platform and that Mueller and Dettman were to assist in such unloading. Thereupon Gerhardt backed the truck up to the platform, and Mueller and Dettman brought a heavy iron plate and an iron roller provided by plaintiff for use in unloading such freight. The three men placed the plate so that it extended from the depot platform to the rear of the truck. They put the roller under the boiler and rolled it to the rear end of the truck, whereupon the truck floor sagged down so that it was lower than the platform and the plate was at too steep an incline. To remedy that condition, Gerhardt drove the truck forward, while Mueller and Dettman stood on opposite sides of the plate to hold it up. They were unable to do so, and the plate, and also the roller, dropped to the pavement. Gerhardt helped them raise up the plate. He then backed up the truck and applied the brake, but the truck's rear wheels, which were on the roller, suddenly moved backward, and Mueller was crushed between the truck and the platform.

Upon those facts the commission found that, although, at the time of Mueller's injury, it was the intention of the boiler works to ship the boiler over plaintiff...