Chicago, Rock Island & Pacific Railway Co. v. Lundquist
| Decision Date | 28 September 1928 |
| Docket Number | 39125 |
| Citation | 221 N.W. 228,206 Iowa 499 |
| Parties | CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellee, v. CECIL LUNDQUIST, Appellant |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--F. L. ANDERSON, Judge.
Plaintiff railway company (appellee) filed its application for arbitration with the industrial commissioner of Iowa, asking that it be adjudged liable under the Workmen's Compensation Law of Iowa to the defendant, Cecil Lundquist (appellant), for permanent injuries accidentally inflicted upon him while in the employ of plaintiff in the city of Cedar Rapids, Iowa, on October 3, 1926. The defendant appeared specially before the industrial commissioner, and denied that the said commissioner had jurisdiction of the matter; denied that he was subject to the Compensation Law of Iowa; denied that he was under an Iowa contract in his said employment; and alleged that, at the time of his injury, his rights were governed by the Federal Employers' Liability Act. The arbitrators, upon hearing, awarded compensation under the Workmen's Compensation Law, for total permanent disability. An appeal was taken to the industrial commissioner, and the finding of the arbitrators was sustained; whereupon an appeal was taken to the district court of Iowa in and for Linn County, and the ruling was affirmed. From the judgment entered the defendant appeals.
Affirmed.
Tautges Wilder & McDonald and John W. Pendy, for appellant.
Sargent Gamble & Read and A. B. Howland, for appellee.
DE GRAFF, J.
I.
The primary proposition on this appeal involves the correctness of the ruling of the industrial commissioner in holding that the appellant Lundquist at the time of his injury was not engaged in interstate commerce. The principal contention requires a brief statement of the record facts.
In 1926, the appellee, Chicago, Rock Island & Pacific Railway Company, was the owner of extensive yard facilities in the city of Cedar Rapids. Its main-line track extended north and south, and numerous yard and classification tracks paralleled the main line on the east side thereof. During the late summer of 1926, the Quaker Oats Company was engaged in making considerable improvements in its plant, and these changes necessitated the construction of additional yards by the railway company, to serve the enlarged plant. It was decided that five additional tracks, each approximately 2,700 feet in length, should be built by the railway company upon the west side of its main-line track. At that time, a line of telegraph poles, carrying the wires of the Western Union and of the railway company, was located immediately west of the main-line track. The construction of the new tracks made necessary considerable filling in on the west side of said track, and also made necessary the removal eventually of the existing line of telegraph poles for a distance of about one-half mile. It was decided to build a pole line, to carry the wires of the telegraph company and the railway company. This line was to extend eastward across the railway tracks to the yard office, a distance of approximately 1,000 feet, thence south for a distance of more than 600 feet, thence diagonally northwest, a distance of some 1,700 feet.
The appellant Lundquist was a member of the crew which was engaged in the construction of the new pole line. Some ten poles were set, and while the crew was preparing to string a messenger or support line, to carry the cable in which the telegraph wires were to be placed, Lundquist received an injury, when he climbed upon an electric-light pole adjacent to the yard office. The pole broke, throwing him to the ground, and causing the injuries complained of herein.
The record also shows that, during the summer of 1926, the Western Union Telegraph Company had been placing its wires through the business district of Cedar Rapids in underground conduits, but this work had extended only as far as the southern part of the Rock Island yards in said city. When it became apparent that the old wires west of the main-line track would have to be removed, negotiations were entered into between the railway company and the telegraph company for the extension of the underground conduits 2,800 feet farther to the north. This work had not been authorized by the Western Union Telegraph Company at the time the appellant was injured, which was on October 3, 1926. The authorization of the extension of the underground conduits was given October 5, 1926. The existing system of telegraph wires was adequate, and there was no occasion for removing the wires, except the necessity for getting them out of the way, to permit the yard construction work to go forward; and it conclusively appears that, while the new pole line was under construction, the old line remained in use, and messages continued to be sent over it. At the time of the injury received by Lundquist, there was no cable upon the new line, and no means of using it for transmitting messages. In brief, the new line was not in use, and in fact had not become an instrumentality of commerce.
In the light of these facts, the question is: Was the appellant, at the time he was injured, engaged in work so closely related to interstate commerce as to be necessarily and in legal contemplation a part thereof? In the final analysis, and reduced to terms, was the work in which appellant was engaged at the time of his injury "new construction," or was it "repair or maintenance work?" We recognize that opinions as to the scope of the Federal Employers' Liability Act have been at variance ever since the act became a law. This is true, not only as between lawyers called upon to deal with the provisions of the act, but also between judges of appellate courts, and even between members of the highest court of these United States. It will suffice, however, to cite, without reviewing the facts, some of the leading cases dealing with the legal principle involved in the case at bar.
The first case in which the Supreme Court of the United States had occasion to consider the Federal statute is Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146 (57 L.Ed. 1125, 33 S.Ct. 648). The differentiation of the underlying principle is therein mentioned by the court, speaking through Justice Van Devanter, in these words:
"Of course, we are not here concerned with the construction of tracks, bridges, engines, or cars which have not as yet become instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities, and during their use as such."
Subsequently, the Supreme Court of the United States had occasion to distinguish between "new construction" and "repair or maintenance" of existing instrumentalities of transportation. Shanks v. Delaware, L. & W. R. Co., 239 U.S. 556 (60 L.Ed. 436, 36 S.Ct. 188); Raymond v. Chicago, M. & St. P. R. Co., 243 U.S. 43 (61 L.Ed. 583, 37 S.Ct. 268); New York Cent. R. Co. v. White, 243 U.S. 188 (61 L.Ed. 667, 37 S.Ct. 247).
In Bravis v. Chicago, M. & St. P. R. Co., 217 F. 234 (C. C. A., 8th Cir.), the court had occasion to consider a case quite identical with the instant case, and it was said, speaking through the late Justice Sanborn:
The rule prescribed by the Supreme Court of the United States has found application in many decisions of our state courts. See Chicago & E. R. Co. v. Steele, 183 Ind. 444 (108 N.E. 4); Dickinson v. Industrial Board, 280 Ill. 342 (117 N.E. 438); Wallace v. New York, N. H. & H. R. Co., 99 Conn. 404 (121 A. 878); Wright v. Interurban R. Co., 189 Iowa 1315, 179 N.W. 877.
The decisions relied upon by appellant are distinguishable on the factual side. See Kinzell v. Chicago, M. & St. P. R. Co., 250 U.S. 130 (63 L.Ed. 893, 39 S.Ct. 412); Grow v. Oregon Short Line R. Co., 44 Utah 160 (138 P. 398); Collins v. Michigan Cent. R. Co., 193 Mich. 303 (159 N.W. 535); Ross v. Sheldon, 176 Iowa 618, 154 N.W. 499.
In the Ross case, supra, this court commented on the fact that the line of demarcation between repair work, on one hand, and construction work, on the other, is not always easily discernible, and that it is highly desirable that a rule of this character should attain as great a degree of certainty as practicable, and "such is the manifest aim of the high court." It was further pointed out in the Ross case that the work was not "independent construction."
Under the facts in the case at bar, it may be observed that the work upon which appellant Lundquist was engaged was the construction of an entirely new telegraph line, in a new location, upon new poles, with the use of new materials, for a distance of approximately 3,500 feet. Furthermore, at that time, the new pole line was not in service in the transmission of messages covering the movements of trains in interstate commerce. The messages were then transmitted over the old wires at the west side of the main-line track. The new line had not yet become an instrumentality of interstate commerce, and under such circumstances, the new facilities cannot be viewed as a part...
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