CHICAGO, M., ST. P. & PR CO. v. Kane

• Decision Date: 15 July 1929
• Docket Number: No. 5760.,5760.
• Citation: 33 F.2d 866
• Parties: CHICAGO, M., ST. P. & P. R. CO. v. KANE.
• Court: U.S. Court of Appeals — Ninth Circuit

33 F.2d 866 (1929)

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

No. 5760.

Circuit Court of Appeals, Ninth Circuit.

July 15, 1929.

Murphy & Whitlock, of Missoula, Mont., and R. F. Gaines, of Butte, Mont., for appellant.

Maury, Brown & Maury, of Butte, Mont., for appellee.

Before RUDKIN and DIETRICH, Circuit Judges, and LOUDERBACK, District Judge.

DIETRICH, Circuit Judge.

The appellee, as administratrix, recovered judgment for $4,500 against appellant for the death of Frank P. Kane, who was struck and killed by one of appellant's west-bound passenger trains at Alcazar, Mont., on September 15, 1928. By the assignments and briefs three general questions are submitted for our consideration: (1) Were Kane's relations to appellant and the conditions at the time of the accident such as to bring the case within the range of the Federal Employers' Liability Act? 45 USCA § 51 et seq. (2) Was the evidence sufficient to send to the jury the issue of defendant's primary negligence? (3) Did the evidence warrant submitting to the jury the issue of negligence under the doctrine of the last clear chance? These we discuss in order.

Inasmuch as there is no exact formula to which the first question can be referred, and every case must be adjudged upon its own facts (Cudahy Packing Co. v. Parramore, 263 U. S. 418, 44 S. Ct. 153, 68 L. Ed. 366, 30 A. L. R. 532), it is necessary to state in some detail the circumstances. The accident happened at about 6:30 in the morning. Alcazar is not a town or village, but a remote railroad station, where there are side and passing tracks and a section house. From this point appellant was working an extra gang of approximately 120 men in surfacing and dressing its roadbed. There being no local facilities for boarding and housing the men, provision was made therefor in movable dining and bunk cars, which were set on a side track at the station, and meals were furnished therein by a commissary concern under contract with appellant, by the terms of which the men were to be charged at a specified rate, and at that rate deductions were to be made from their checks and paid to the commissary. There is no question that the track upon which the work was being done was a facility of interstate commerce, and, indeed, appellant concedes that, had Kane actually entered upon the work prior to the accident, he would have been within the protection of the Liability Act. It seems that appellant was adding to the gang from day to day men secured through its employment agencies, and Kane had been so engaged by its agent at Butte.

In charge and under the control of one of appellant's agents he, with five or six others employed in like manner, was taken on board of one of appellant's passenger trains, and without charge was carried to Alcazar, reaching his destination some time in the evening of September 14th. Being advised that six or seven men were being sent for this service, the foreman of the gang was at the station to meet them upon the arrival of the train. They were there directed to get off and carry some camp supplies which had come in on the train to the commissary. Then all were immediately issued blankets and were assigned to their bunks. Apparently both the commissary steward and the night foreman participated in giving these orders and making these assignments. The men were informed of the breakfast hour about 6:45, and that they were to go to work at 8 o'clock. Across three tracks upon the other side of the yard from the bunk and dining cars were the section house, the water supply, and all toilet facilities. Just before the breakfast hour, Kane was struck and killed while he was walking across these tracks in an "angling" direction from the bunk cars for the purpose of going to the toilet. Undoubtedly he was in appellant's employ, and his service was interstate. By the conditions of his employment, he was necessarily on appellant's premises, and was making necessary preparations for the work in which he was to engage an hour and a half later, in a reasonable manner and within a reasonable time. Appellant's contentions seem to be predicated solely upon the consideration that he had not yet lifted a pick or stuck a shovel into the ground. But his employment was definite, and the nature and place of his service for the day were clearly understood. True, the gang foreman might have discharged him before he did any actual work, or might have assigned him to a different kind of work, but such authority with respect to the future he would have at any time over any one of the men, regardless of the length of service of such man in the past.

In contemplation of law, we are of the opinion that, within the principle recognized by us in Lamphere v. Oregon R. & N. Co. (C. C. A.) 196 F. 336, 47 L. R. A. (N. S.) 1, and San Pedro, etc., v. Davide (C. C. A.) 210 F. 870, deceased was employed in interstate commerce at the time of the accident. In support of this decision we may also cite Missouri, K. & T. Ry. Co. v. United States, 231 U. S. 112, 34 S. Ct. 26, 58 L. Ed. 144; Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125; St. Louis, etc., v. Seale et al., 229 U. S. 156, 33 S. Ct. 651, 57 L. Ed. 1129; North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 S. Ct. 305, 58 L. Ed. 591; Erie R. Co. v. Winfield, 244 U. S. 170, 37 S. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662; Padgett v. Seaboard Air Line Ry., 99 S. C. 364, 83 S. E. 633, affirmed without discussion of this particular question, 236 U. S. 668, 35 S. Ct. 481, 59 L. Ed. 777. Similarly Baltimore & Ohio R. Co. v. Whitacre, 124 Md. 411, 92 A. 1060; Id., 242 U. S. 169, 37 S. Ct. 33, 61 L. Ed. 228; Phila., B. & W. R. Co. v. Smith, 132 Md. 345, 103 A. 945; Id., 250 U. S. 101, 39 S. Ct. 396, 63 L. Ed. 869; Brock v. Chicago, Rock Island & P. R. Co., 305 Mo. 502, 266 S. W. 691, 36 A. L. R. 891, certiorari denied 266 U. S. 634, 45 S. Ct. 226, 69 L. Ed. 479; B. & O. R. Co. v. Kast (C. C. A.) 299 F. 419, certiorari denied 266 U. S. 613, 45 S. Ct. 95, 69 L. Ed. 468; Moyse v. N. P. R. Co., 41 Mont. 272, 108 P. 1062; Carter v. St. Louis, etc., R. Co., 307 Mo. 595, 271 S. W. 358; Missouri, K. & T. Ry. Co. v. Rentz (Tex. Civ. App.) 162 S. W. 959; Sanders v. Charleston & W. C. Ry. Co., 97 S. C. 50, 81 S. E. 283; Stool v. Southern Pacific Co., 88 Or. 350, 172 P. 101; Louisville, etc., R. Co. v. Walker's Adm'r, 162 Ky. 209, 172 S. W. 517. Appellant cites numerous decisions, but we do not find any of them necessarily opposed to the view we have taken. Perhaps those most nearly in point are Ill. Cent. R. Co. v. Behrens, 233 U. S. 473, 34 S. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163, and Erie R. Co. v. Welsh, 242 U. S. 303, 37 S. Ct. 116, 61 L. Ed. 319. They both involved the nice distinctions which must often be made where the injured party is engaged in work which may have to do one moment with intrastate and the next with interstate commerce. But Kane's service was by both parties understood to be in interstate commerce, and nothing else.

Upon an analysis of the evidence, we are constrained to the conclusion that, whether defendant's trainmen were negligent and if so, whether such negligence was the proximate cause of the accident, and whether they were at fault under the doctrine of the last clear chance, were questions for the jury. Plaintiff's contentions were and are that the train was going through the station at a speed exceeding 35 miles an hour, that there was a total failure to give any warning signals until the train was within a few feet of deceased, and that no efforts were made to protect him when the engineer should have...