Chicago & Erie Railrcad Company v. Steele
| Citation | 108 N.E. 4,183 Ind. 444 |
| Decision Date | 04 March 1915 |
| Docket Number | 22,577 |
| Parties | Chicago and Erie Railrcad Company v. Steele |
| Court | Supreme Court of Indiana |
Rehearing Denied June 24, 1915.
From Allen Circuit Court; J. W. Eggeman, Judge.
Action by Edwin H. Steele against the Chicago and Erie Railroad Company. From a judgment for plaintiff, the defendant appeals.
Reversed.
W. A Johnson, W. M. Johnson, C. K. Lucas and Walter Olds, for appellant.
Fred H Bowers, Milo N. Feightner and John Aiken, for appellee.
Morris, Erwin, J., not participating.
Action by appellee against appellant for damages for injuries resulting from alleged negligence of appellant in the movement, on July 3, 1912, of its cars on its tracks, in the city of Rochester, Indiana, while appellee, as a brakeman, pursuant to orders of his conductor, was passing along the track for the purpose of opening a switch. The complaint alleges that appellant was engaged in interstate commerce and that when injured appellee was employed by it in such commerce. Appellant contends that the trial court erred in overruling its demurrer to the complaint. We are of the opinion that the complaint is sufficient. There was a trial by jury and verdict and judgment for appellee in the sum of $ 7,025.50. A motion for a new trial, based on alleged error in the giving and refusing of requested instructions, and on the insufficiency of the evidence, was overruled, and this action is assigned as error.
At appellee's request the court instructed the jury that the complaint was based on the act of Congress of April 22, 1908, commonly known as the Federal Employer's Liability Act, and that a recovery could not be had unless the jury found from the evidence that appellee was employed in interstate commerce; but that if so employed, appellee was entitled to recover, if the other material averments were proven, notwithstanding his guilt of contributory negligence, if shown; that in the latter event the damages awarded should be diminished in proportion to the amount of appellee's contributory negligence. The complaint involved no question in relation to a violation, by appellant, of any Federal statute enacted for the safety of employes.
By its requested instruction No. 23 appellant sought a direction to the jury that there was no evidence to warrant a finding that appellee was employed in interstate commerce when injured. The request was refused, and appellant earnestly contends that the court erred because, as claimed, there is a total lack of evidence to support a finding for appellee under the provisions of the Federal Employer's Liability Act.
There is no controversy in relation to the evidence on this subject. Appellant, at the time of the injury, was engaged in both interstate and intrastate commerce. The injury occurred in its yards near Rochester, Indiana. Appellant was constructing, in the vicinity of that city, another track for its railroad, so that, when completed, it might have a double, instead of a single, track railway. Appellee was one of a train crew employed on a work train engaged in hauling railroad ties for distribution along the right of way, which ties were intended to be used on the grade of the proposed second track. The grade was not then finished. The work train moved along the rails of the existing track, which was then used in interstate commerce, and the ties were thrown to the side along the line of the new grade. The operation of the work train was wholly in this State, and no part of the proposed track had been used for any purpose, but when the same might have been completed it was intended by appellant to use the same in interstate commerce.
We are constrained to hold with appellant in its contention. The Federal act in question provides "That every common carrier by railroad while engaged 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 * * *." Under this act it was held by the Supreme Court of the United States in Pedersen v. Delaware, etc., R. Co. (1913), 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914 C 153, that an interstate carrier was liable for injuries sustained by an employe while he was engaged in the repair of a bridge that had been and was being used by the carrier in the operation of an interstate railroad. The following appears in the opinion: ...
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