Davis v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 14 July 1916
• Docket Number: Nos. 19,815 - (212).,s. 19,815 - (212).
• Citation: 134 Minn. 49
• Parties: LEO DAVIS v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

134 Minn. 49

LEO DAVIS v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY.¹

Nos. 19,815 - (212).

Supreme Court of Minnesota.

July 14, 1916.

Action in the district court for Ramsey county by the guardian ad litem of plaintiff minor to recover $25,000 for personal injury received

while in the employ of defendant. The case was tried before Brill, J., who granted defendant's motion for a directed verdict. From an order denying his motion for a new trial, plaintiff appealed. Reversed.

Samuel A. Anderson and A. F. Storey, for appellant.

Edward C. Stringer, McNeil V. Seymour, and Edward S. Stringer, for respondent.

HOLT, J.

This action to recover damages for personal injuries is brought by plaintiff against his employer, a railway company, doing business as a common carrier. The evidence justified a finding that plaintiff up until 10:30 a. m. of the day of his injury was engaged in the duties of a rear brakeman on a railway freight train of the defendant, which train was carrying interstate commerce. The legal proposition is whether plaintiff at the time of his injury, some hours later, was under the protection of the Federal Employer's Liability Act. If, as a matter of law, he was not, concededly the trial court should be sustained in directing a verdict for defendant.

The freight train, upon which plaintiff was working as rear brakeman, left Council Bluffs, Iowa, at 11:55 p. m. October 25, 1914, and arrived at Valley Junction, the same state, at 10:30 a. m. the next day. That was the end of plaintiff's run. He still had these duties to perform: Take down the markers (the lanterns upon the caboose); clean and fill eight lamps and lanterns; sweep out the caboose; register in, and, in this instance, get a supply of kerosene from the storehouse. The testimony is clear that these duties could easily be performed in an hour. As soon as the caboose was set in on its proper track, plaintiff took in the markers and obtained the needed kerosene, but then, instead of pursuing his tasks, he sat down to read, fell asleep, and did not awake until 2:30 p. m. He was through an hour later, and then started easterly through the yard, a usual route for employees to take in leaving their work, walking between two tracks. The space between was sufficient, so that a person being mindful of the situation could avoid being struck by passing locomotives. Plaintiff intended to keep in the clear, but unconsciously swerved towards the track upon which a locomotive with the tender in front was then approaching him from behind. He was hit and his left foot crushed.

The trial court was of the opinion that the proof made defendant's negligence a jury question, but stated: "I think it must be held in this case that the plaintiff was not engaged in interstate commerce at the time of his injury. I think he cannot prolong the relation at his own will or convenience. I think that he had terminated that relation when he exceeded the reasonable time in which to complete his work; that is, where he abandoned the work, as he did, for several hours after his arrival at the point of his destination."

Plaintiff's duties with respect to the caboose and lanterns were as above stated, but it would seem that the evidence leaves room for the conclusion that, so long as these matters were gotten in proper condition before the next trip of the caboose, defendant found no fault. The trainmaster of defendant at Valley Junction testified that it was the rear brakeman's duty to take down the markers, get kerosene, fill and clean the lamps and lanterns, and leave the caboose clean, and that the brakeman might use his judgment as to when it shall be done so long as it is done. It would also seem a proper inference that this caboose was regularly used in the freight train No. 90, upon the division from Council Bluffs to Valley Junction. And further that the train, known as No. 90, was one of defendant's regular freight trains coming from the west to Omaha, but running through that city and across the Missouri river over the tracks of the Union Pacific Railway, to Council Bluffs, and thence to Valley Junction and clear to Chicago. It might thus be found that the caboose and its lamps and lanterns were an instrumentality employed in interstate commerce, and that plaintiff in preparing the same for the next trip was "engaged in interstate transportation or in work so closely related to it as to be practically a part of it." Such work may consist in "repairing or keeping in usable condition a roadbed, bridge, engine, car or other instrument then in use in such transportation." Shanks v. Delaware, L. & W. R. Co. 239 U. S. 556,...