Chicago And Eastern Illinois Railway Company v. Schraeder
| Decision Date | 25 October 1929 |
| Docket Number | 13,503 |
| Citation | 168 N.E. 468,90 Ind.App. 151 |
| Parties | CHICAGO AND EASTERN ILLINOIS RAILWAY COMPANY v. SCHRAEDER |
| Court | Indiana Appellate Court |
From Vanderburgh Superior Court; Edgar Durre, Judge.
Action by William Schraeder against the Chicago and Eastern Illinois Railway Company. From a judgment for plaintiff, the defendant appealed.
Affirmed.
Frank H. Hatfield, Louis L. Roberts and K. L. Richmond, for appellant.
Emra H Ireland and Winfield K. Denton, for appellee.
Action by appellee against appellant on an insurance certificate insuring appellee against loss resulting directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means. Trial by jury resulted in a verdict and judgment for appellee in the sum of $ 840.
Appellant contends that the verdict is not sustained by sufficient evidence, that it is contrary to law, and that the court erred in giving and in refusing to give certain instructions.
Appellee at the time of his injury, was an employee of appellant, and held a contract of insurance whereby appellant had insured him "against loss resulting directly and independently of all other causes from bodily injuries and death effected solely through external, violent and accidental means." Referring to the benefits payable under the policy, the contract provides that:
Appellee during the two weeks immediately prior to the day on which he was injured, had been making student trips as a fireman between Evansville and Terre Haute, and, while so doing, stayed at a boarding house in Terre Haute. After making such trips for two weeks, he was employed as a regular fireman, and on December 29, 1924, was working as a fireman at Sieffert. There is no town or houses at Sieffert, only a coal yard and dispatcher's office. He came to his work on a passenger train, got off at Farmersburg, and walked to Sieffert, a distance of about a mile. He began work at 12 noon and quit work at 8 p. m. When he quit work, he left his engine in the yard where he had been working and went to the dispatcher's office and made out his time. Appellant had issued to its employees, including appellee, meal tickets that would be accepted as cash by a certain boarding house at Terre Haute where appellee had been boarding. Through an arrangement with the boarding house, these tickets were turned over to appellant, and the amount thereof deducted from the employee's wages each pay day for the use of the proprietor of the boarding house. Sieffert is 10 or 12 miles from Terre Haute. It was the custom of the employees of appellant working at Sieffert at the end of the day's work to "deadhead" their way on locomotives and trains of appellant to Terre Haute. On the night when appellee was injured, after having quit his work, and after having turned in his time, he walked out onto the platform in front of the dispatcher's office, and, while attempting to get on the engine of a slowly moving freight train, for the purpose of going to Terre Haute, was injured. After turning in his time and being checked out, appellee had nothing to do and was not subject to call until 12 o'clock noon the next day. He was free to do as he desired and to go where and how he pleased.
Appellant's first contention is that appellee was not engaged in any service for appellant at the time he was injured, was not on duty, and, therefore, not entitled to recover.
Appellant relies principally upon cases construing the federal "Hours of Service Act" (45 USCA §§ 61-64) and the order of the Interstate Commerce Commission, which make it unlawful for any common carrier subject to the act of Congress "to require or permit any employee subject to this Act to be or remain on duty for a longer period than sixteen consecutive hours."
In United States v. Chicago, etc., R. Co. (1912), 195 F. 783, it was held that an employee was on duty within the statute when he was at his post of duty in obedience to rules or requirements and ready and willing to work, whether actually at work or awaiting orders. In discussing "duty" as used in the statute, the declared purpose of which was "to promote the safety of employees and travelers upon railroads by limiting the hours of service of employees thereon," the court said: To the same effect, see United States v. Denver, etc., R. Co. (1912), 197 F. 629.
In St. Louis, etc., R. Co. v. Harvey (1906), 144 F. 806, a servant of the railroad was injured in a collision between a hand-car on which he was riding and another hand-car operated by other servants of the company. The question at issue was whether the servants on the car negligently causing the collision were within the scope of the duty assigned to them under their employment, that is, whether the acts were done during the time of their employment about the business of their master. It appeared that the servants whose negligence caused the injury had taken the hand-car and gone to a station on the line of the railroad and returned several hours after the time of their employment for the day had ended. There was no evidence as to the purpose these men had in using the hand-car, and, under the evidence, the court held the presumption was that they were not engaged in any business of the company, but were attending to their own affairs exclusively, and that the evidence was not sufficient to sustain the verdict. Other cases of like character cited by the appellant are of no controlling influence in the instant case.
A telegrapher not released from duty at lunch time, but who is subject to call is on duty under the 16-hour law. United States v. New York, etc., R. Co. (1921), 274 F 321. But in United States v. Atchison, etc., R. Co. (1911), 220 U.S. 37, 31 S.Ct. 362, 55 L.Ed. 361, it was held that where a telegrapher was employed for six hours, and then, after an interval of three hours, was employed for a period of three hours, was not employed for a...
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