Chicago & Erie Railroad Company v. Feightner
| Decision Date | 22 December 1916 |
| Docket Number | 9,056 |
| Citation | 114 N.E. 659,75 Ind.App. 677 |
| Parties | CHICAGO AND ERIE RAILROAD COMPANY v. FEIGHTNER, ADMINISTRATOR |
| Court | Indiana Appellate Court |
Rehearing denied December 26, 1916. Petition to transfer dismissed August 16, 1917.
From Wells Circuit Court; W. H. Eichhorn, Judge.
Action by Patrick M. McCarty, administrator of the estate of Emanuel N. Wolfe, deceased, against the Chicago and Erie Railroad Company. From a judgment for plaintiff, the defendant appeals. Milo Feightner, administrator de bonis non was substituted as appellee on the death of McCarty.
Reversed.
E. C Vaughn, W. O. Johnson and Walter M. Johnson, for appellant.
Bowers & Feightner and Sturgis & Stone, for appellee.
This is an appeal from a judgment recovered by Patrick M. McCarty, administrator of the estate of Emanuel N. Wolfe, deceased, to recover damages for the death of said Wolfe, alleged to have been caused by appellant's negligence. Since the submission of the cause, the death of said McCarty has been suggested and Milo Feightner, administrator de bonis non, substituted as appellee.
A demurrer to the complaint for want of facts and a motion for new trial filed by appellant were each overruled. These rulings are each assigned as error and relied on for reversal. We will dispose of them in the order indicated.
In the trial court, the complaint was treated by the parties and by such court, as predicated on the federal Employers' Liability Act of April 22, 1908, as amended by the act of April 5, 1910, and hence, this court will likewise so treat it in determining whether error was committed by the trial court in overruling the demurrer thereto. Zeller, etc., Co. v. Vinardi (1908), 42 Ind.App. 232, 85 N.E. 378; Oolitic Stone Co. v. Ridge (1908), 169 Ind. 639, 83 N.E. 246; Euler v. Euler (1913), 55 Ind.App. 547, 102 N.E. 856, and cases there cited.
It is urged against the complaint that the facts pleaded do not show: (1) Liability under said act; (2) that such facts do not show that either appellant or decedent was engaged in interstate commerce at the time decedent received his injury; (3) that the facts pleaded show that decedent assumed the risk which resulted in his death; (4) that the facts pleaded do not show that decedent's death was the proximate result of any violation of duty on the part of appellant.
As affecting these and other questions presented by the appeal, substantially the following facts are alleged in the complaint: Appellant is a railroad corporation and owns and operates a line of railway from Chicago, Illinois, through the State of Indiana, and other states, which is used by it in carrying on interstate commerce. Decedent was employed by appellant as freight brakeman and on January 4, 1913, was employed on a freight train which on said day was carrying freight from Chicago, Illinois, to Hammond, Indiana, and from and to points along defendant's line of railway eastward, and was engaged in transporting freight from and to points along appellant's road through Indiana, and also freight to be delivered at points in Ohio and other places beyond such state. Such line of railway extends through Crown Point, Indiana, and at such point appellant owns and uses three parallel tracks, namely, a main track, a track immediately north thereof, known as a passing track, and another track immediately north of the latter used for loading freight, known as the back track. A switch leads off the main line to the passing track, and another switch off the passing track to the back track. On the day in question decedent was on an east bound freight train which started at Hammond, Indiana. When the train reached Crown Point, the locomotive was detached from the train, and in charge of the engineer and fireman, and decedent and a foreman, proceeded to change two cars on the back track above described. The divers movements of the locomotive necessary to make this change are alleged in detail. The two cars were pulled out on the passing track and the rear car was left standing thereon at a point near the entrance to the back track, while the car next to the locomotive was being relocated on the back track. Decedent climbed on the car that was being relocated on the south side at the end next to the locomotive, and pursuant to orders and directions which he was bound to obey, proceeded to uncouple said car from the locomotive. The car on the passing track had been left standing at a point so close to the entrance to such back track that there was but a twelve-inch passing space between the two cars. Decedent was inexperienced in railroading and had worked as a freight brakeman but a few days, which was known to appellant. While decedent was uncoupling said car as it was moving backward, and with his mind absorbed in such act, he was struck by the car left on the passing track and thrown under the wheels of the tender and locomotive and injured so that he died a few minutes thereafter. Decedent did not know of the close proximity of the car on the passing track, to the entrance to the back track, and he had no warning of the danger he was about to encounter while attempting to ride the other car back into the back track. The engineer who had charge of the locomotive, and the foreman who was giving directions as to the placing of said cars, both knew of the proximity of the car on the passing track to the back track, and of the danger and peril that decedent was in, in passing said car, before decedent was injured. Decedent was engaged in coupling and uncoupling said cars while locating them, and his attention was directed upon said duties and he relied on the foreman and engineer to place the cars at such places as would not injure him.
In support of its first two propositions, supra, it is insisted by appellant that the facts pleaded show that decedent, when injured, was engaged in setting and handling cars taken off of appellant's side tracks at Crown Point, and that nothing appears from such averments showing that such cars were intended for interstate transportation, or that they contained any freight for such transportation, and hence that nothing appears from the complaint to show that decedent, at the time of his injury, was engaged in interstate commerce.
It may be and in fact must be conceded, as appellant contends, that recovery under the statute involved "arises only where the injury is suffered while the carrier is engaged in interstate commerce, and while the employe is employed by the carrier in such commerce," and, at the time of his injury, such employe must be engaged in interstate commerce. Hammill v. Pennsylvania R. Co. (1915), 87 N.J.L. 388, 94 A. 313; Thornton, Federal Employers' Liability Act § 40, and cases there cited; Pedersen v. Delaware, etc., R. Co. (1913), 229 U.S. 146, 150, 33 S.Ct. 648, 57 L.Ed. 1125, 1126, Ann. Cas. 1914C 153.
The averments of the complaint indicated, supra, show, that, while the train on which decedent was employed was being operated over an interstate road, it was a local train being operated between two cities in this state, and hence, was not, strictly speaking, an interstate train. The complaint, however, contains the further averments which we have italicized, supra, and which show that such train had in it cars loaded with interstate freight. These averments were sufficient to show that such train was transporting interstate commerce, and hence, that appellee's decedent was likewise engaged in assisting in the transportation of such commerce, at least while engaged on such train in the work of assisting in the transportation and handling of such train, or any of the cars thereof containing interstate freight. This is in effect, we think, conceded by appellant, but it is very earnestly insisted that when said engine was detached from said train and attached to the local cars on appellant's side tracks at Crown Point, that such engine was not then engaged in transporting interstate commerce, and hence, that decedent while assisting in such work was not so engaged. In support of its position, appellant relies on the following cases: Tsmura v. Great Northern R. Co. (1910), 58 Wash. 316, 108 P. 774; Van Brimmer v. Texas, etc., R. Co. (1911), 190 F. 394; Second Employers' Liability Cases (1912), 223 U.S. 1, 56 L.Ed. 327, 32 S.Ct. 169; Seaboard Air Line v. Moore (1913), 228 U.S. 433, 57 L.Ed. 907, 33 S.Ct. 580; St. Louis, etc., Co. v. Seale (1913), 229 U.S. 156, 57 L.Ed. 1129, 1133, 33 S.Ct. 651; North Carolina R. Co. v. Zachary (1914), 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591; Grand Trunk R. Co. v. Lindsay (1914), 233 U.S. 42, 34 S.Ct. 581, 58 L.Ed. 838.
While there are statements in some of these cases which lend apparent support to appellant's contention, such statements have been criticized by later decisions, and the facts of each of the other cases cited by appellant distinguish the respective case from the case made by the complaint in this case. Horton v. Oregon-Washington, etc., Co. (1913), 72 Wash. 503, 130 P. 897, 47 L. R. A. (N. S.) 8; Shanks v. Delaware, etc., R. Co. (1914), 163 A.D. 565, 148 N.Y.S. 1034; Pennsylvania Co. v. Donat (1915), 239 U.S. 50, 36 S.Ct. 4, 60 L.Ed. 139; Lamphere v. Oregon R., etc., Co. (1912), 196 F. 336, 116 C. C. A. 156, 47 L. R. A. (N. S.) 1, and cases there cited; Atlantic Coast Line R. Co. v. Jones (1913), 9 Ala.App. 499, 63 So. 693; Thornton, Federal Employers' Liability Act §§ 45, 49; Southern R. Co. v. Jacobs (1914), 116 Va. 189, 81 S.E. 99; Colasurdo v. Central R., etc. (1910), (C. C.) 180 F. 832; Behrens v. Illinois Cent. R. Co. (1911), 192 F. 581; Carr v. New York, etc., Co. (1913), 157 A.D. 941, 142 N.Y.S. 1111, Id., 142 N.Y.S. 1111; New York, etc., Co. v. Carr (1915), 238 U.S. 260, 35 S.Ct. 780, 59 L.Ed. 1298.
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