Chicago, Burlington & Quincy Railroad Company v. Amack

• Decision Date: 18 July 1924
• Docket Number: 24123
• Citation: 199 N.W. 724,112 Neb. 437
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLANT, v. I. T. AMACK, ADMINISTRATOR, APPELLEE
• Court: Nebraska Supreme Court

199 N.W. 724

112 Neb. 437

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLANT, v. I. T. AMACK, ADMINISTRATOR, APPELLEE

No. 24123

Supreme Court of Nebraska

July 18, 1924

APPEAL from the district court for Webster county: LEWIS H BLACKLEDGE, JUDGE. Reversed and dismissed.

Judgment of the district court reversed and cause dismissed.

Byron Clark, Jesse L. Root and Paul E. Boslaugh, for appellant.

F. J Munday, contra.

Heard before MORRISSEY, C. J., LETTON, ROSE, DEAN, GOOD and THOMPSON, JJ., and REDICK, District Judge.

OPINION

PER CURIAM.

William S. Bruner, while employed by the appellant as a member of a bridge gang, was killed by a train. Claim was made for compensation under the workmen's compensation act. An allowance was made by the labor commissioner. The railroad company appealed to the district court, and from an adverse decision there has brought this appeal.

The question at issue is a narrow one. Bruner was working with a bridge gang, constructing a concrete culvert under a wooden trestle upon the main line of the Chicago, Burlington & Quincy Railroad between Kansas City, Missouri, and Denver, Colorado. It is the contention of the defendant that the provision in subdivision 2, sec. 3029, Comp. St. 1922, "Railroad companies engaged in interstate or foreign commerce are declared subject to the powers of congress and not within the provisions of this act," applies, and that hence there can be no award. The appellee rests his case upon the proposition that the work in which deceased was engaged was not connected with interstate commerce, that it was new work having no direct relation to such commerce and therefore that his employment fell within the provisions of the compensation act. Granting that deceased was not engaged in interstate commerce, is such an employee or his dependents entitled to compensation under the law? Section 3029, Comp. St. 1922, is a general statute. The first subdivision provides: "The provisions of this act shall apply to the state of Nebraska and every governmental agency created by it, and to every employer in this state employing one or more employees, in the regular trade, business, profession or vocation of such employer." The second subdivision is as follows: "The following are declared not to be hazardous occupations and not within the provisions of this act: Employers of household domestic servants and employers of farm laborers. Railroad companies engaged in interstate or foreign commerce are declared subject to the powers of congress and not within the provisions of this act."

The determination of the question depends upon the intention of the legislature as expressed in this section. The first subdivision is inclusive in the classification of employers and the second subdivision is exclusive. It is expressly provided that employers of household domestic servants, employers of farm laborers, and railroad companies engaged in interstate or foreign commerce are not within the provisions of this act. Can language be more clear and positive? The contention of the claimant is that the statute should be read as if it contained the word "while" or "when," as follows: "Railroad companies 'while' or 'when' engaged in interstate or foreign commerce are declared subject to the powers of congress and not within the provisions of this act." Is the court authorized to amend the act in this manner? The rule is that if the language of a statute is...