Efaw v. Indus. Comm'n of Wis.

• Decision Date: 05 November 1929
• Citation: 200 Wis. 137,227 N.W. 249
• Parties: EFAW v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

200 Wis. 137

227 N.W. 249

EFAW

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1929.

Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge.

Action by Russell B. Efaw to set aside an order of the State Industrial Commission awarding compensation to plaintiff for injuries sustained while he was employed by the Great Northern Railway Company. From an adverse judgment, defendants appeal. Affirmed.--[By Editorial Staff.]

Action begun November 1, 1927. Judgment entered March 16, 1929.

Action by plaintiff to set aside and vacate an order of the Industrial Commission of Wisconsin, which awarded compensation to plaintiff for injuries sustained by him while employed by the Great Northern Railway Company. The award was made by the commission pursuant to its conclusion that, at the time of the injury, the plaintiff and his employer were subject to the provisions of sections 102.03 to 102.35, Wis. Stats. The Circuit Court entered judgment setting aside and vacating the award. Defendants appealed from that judgment.John W. Reynolds, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and Murphy, Hughes & Anderson, of Superior, for appellants.

Wilson & Wilson, of Superior, and Samuel A. Anderson, of St. Paul, Minn., for respondent.

FRITZ, J.

The learned circuit judge concluded that at the time of the plaintiff Efaw's injury he was engaged in work which was so closely related to interstate commerce as to be practically a part of it, and, consequently, that plaintiff and his employer were not subject to provisions of sections 102.03 to 102.35, Wis. Stats., and it was beyond the jurisdiction of the Industrial Commission of Wisconsin to make an award for compensation. There is no conflict in the evidence as to plaintiff's work and duties when he was injured, but the facts established by the undisputed evidence present a troublesome question of law.

The Great Northern Railway Company operates an extensive system through several states. About 25 miles of main track, from the city of Superior to the Minnesota border, together with extensive terminal facilities at Superior, constitute the only portion of its system which is in Wisconsin. At Superior it had docks and facilities for unloading and storing coal, some of which, as needed, was loaded and transported on its cars and tracks to a storage track near a coal chute, for coaling its locomotives. Almost all of its locomotives and trains were used in interstate commerce. Thirty-five locomotives were used, indiscriminately in terminal switching operations, a small part of which was only intrastate in character. All of its locomotives at Superior, whether used in interstate or intrastate transportation, were coaled at its Superior chute at the completion of the day's work, and were then left in its roundhouse or on its storage tracks from 8 to 48 hours before being assigned to any type of commerce.

Plaintiff, a laborer, was employed most of the time in repairing and cleaning the railway's structures and water system in the Superior terminal. Occasionally he had to help unload cars of coal into the coal chute, which was a building containing 20 receptacles or pockets. An incline 60 feet long extended upward 30 feet from the yard level to the top of the chute. A “load” track, upon which each loaded coal car was placed to be unloaded into the chute, extended from the yard level up the incline and over the pockets. Fifteen feet up the incline there was a switch connecting an “empty” track with the “load” track, and designed to be thrown to let each car, when unloaded, off the “load” track and out of the way. An electric stationary engine and a cable, extending from the top of the chute, were used to hoist up the loaded cars and to lower the empty cars. From 5 to 8 cars were spotted on the “load” track during each 8-hour shift, and from 12 to 18 carloads were required each day to supply the locomotives. The total capacity of the 20 pockets was from 12 to 16 cars, which was a sufficient supply for 12 to 14 hours. The coal was unloaded from the loaded cars into the pockets for use of the locomotives as fast as they were brought up. A foreman had charge of the men who unloaded the coal, and he operated the electric hoisting engine and also opened the pockets for the locomotives as they were brought up for coaling.

On the day of the accident plaintiff and his crew had unloaded 3 of 6 loaded cars, each of which they had to haul up on the “load” track. The last of those three cars had “pick up” coal which had been spilled at the chute while locomotives were being unloaded, and which had been shoveled up from the ground into a gondola car, which had been left standing on a storage track for several days until a load accumulated. After that it had stood on another storage track for several days. “Pick up” coal was not used on passenger or road locomotives, but only on locomotives which were used for switching within the city of Superior. After unloading that third car, plaintiff started to walk down the incline to turn the switch to the empty track, so as to let that empty car out of the way and to assist in bringing up the next car, which was loaded with coal for general use. Before reaching the switch, that empty car, which the foreman was letting down by means of the electric engine and the cable, overtook plaintiff and seriously injured him.

[1][2] In determining whether the work in which Efaw was engaged when injured was so closely related to interstate transportation as to be a part of it, “we are only concerned with the nature of the work in which the plaintiff was employed at the time of his injury.” Pedersen v. Railway Co., 229 U. S. 146, 151, 33 S. Ct. 648, 649, 57 L. Ed. 1125, Ann. Cas. 1914C, 153;Erie R. Co. v. Collins (C. C. A.) 259 F. 172. Efaw sustained his injury while walking down the incline to turn the switch and clear the “load” track on the incline for another car loaded with coal which was for use of locomotives engaged in both types of transportation....