Eley v. Chicago Great Western Railroad Co.

• Decision Date: 18 March 1918
• Docket Number: 32067
• Citation: 166 N.W. 739,186 Iowa 312
• Parties: A. D. ELEY, Appellee, v. CHICAGO GREAT WESTERN RAILROAD COMPANY, Appellant
• Court: Iowa Supreme Court

166 N.W. 739

186 Iowa 312

A. D. ELEY, Appellee, v. CHICAGO GREAT WESTERN RAILROAD COMPANY, Appellant

No. 32067

Supreme Court of Iowa, Des Moines

March 18, 1918

REHEARING DENIED MAY 21, 1919.

Appeal from Wright District Court.--R. M. WRIGHT, Judge.

ACTION for damages under the Federal Employers' Liability Act. Judgment for plaintiff. Defendant appeals.

Affirmed.

Carr Carr & Evans, and Birdsall, McGrath & Archerd, for appellant.

J. W Henneberry and Sylvester Flynn, for appellee.

STEVENS, J. PRESTON, C. J., LADD and GAYNOR, JJ., concur.

OPINION

STEVENS, J.

Defendant, at the time of the accident causing the injuries complained of, was engaged in operating a line of railway extending from Hayfield, Minnesota, to Clarion, Iowa, and to other points. Plaintiff was employed as a conductor, and on the day of the accident, was in charge of a work train (known as Extra No. 130), employed in distributing ties at various points along the route between Clarion and Thornton, stations in Iowa on defendant's line, for use in repairing the track. The injuries were received about 9:10 P. M., while plaintiff was returning to Clarion with the train crew and several section men who had assisted to unload the ties. While standing on the track at Cornelia, the caboose was run into by a regular freight train, known as No. 87, resulting in the injuries suffered by plaintiff. The stop was made on account of some defect in the engine, requiring the use of grain doors as fuel to create sufficient steam to continue with the caboose and engine to Clarion. Further necessary facts will be referred to in the course of the opinion.

I. Plaintiff brought this action under the Federal Employers' Liability Act, and his right to maintain it is challenged by counsel for defendant, upon the ground that he was not, at the time of the accident, engaged in interstate commerce.

He left Clarion in the morning, in charge of Extra No. 130, composed of an engine, caboose, and several cars loaded with ties, to be distributed at various places along the track. Having finished unloading the ties at Thornton, in obedience to orders from the chief dispatcher, plaintiff and crew were returning to Clarion. The train at this time consisted of the caboose and engine. The crew comprised the fireman, engineer, two brakemen, and plaintiff. Several of the section men who had assisted in unloading the ties were also riding in the caboose. Although counsel does not concede that, while plaintiff was in charge of the train unloading ties with which to repair the track used for interstate traffic, he was employed therein, it has quite generally been held that an employee engaged in delivering material therefor, or in repairing bridges or tracks used in interstate commerce is likewise so employed. An employee, while on his way to and from his work, if employed in interstate commerce, injured by the negligence of his employer, is entitled to prosecute his action for damages under the Federal Act. Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146 (57 L.Ed. 1125, 33 S.Ct. 648); Bravis v. Chicago, M. & St. P. R. Co., 133 C. C. A. 228, 229; Law v. Illinois Cent. R. Co., 126 C. C. A. 27; Philadelphia, B. & W. R. Co. v. McConnell, 228 F. 263; Tralich v. Chicago, M. & St. P. R. Co., 217 F. 675; Coal & Coke R. Co. v. Deal, 231 F. 604; Zikos v. Oregon R. & N. Co., 179 F. 893; Illinois Cent. R. Co. v. Rogers, 221 F. 52; Central R. Co. v. Colasurdo, 192 F. 901; Darr v. Baltimore & O. R. Co., 197 F. 665; Louisville & N. R. Co. v. Walker's Admr., 162 Ky. 209 (172 S.W. 517); Louisville & N. R. Co v. Williams' Admr., 175 Ky. 679 (194 S.W. 920); Bumstead v. Missouri Pac. R. Co., 99 Kan. 589 (162 P. 347); Southern Pac. Co. v. Industrial Acc. Comn., 174 Cal. 8 (161 P. 1139); Chesapeake & O. R. Co. v. Kornhoff, 167 Ky. 353 (180 S.W. 523); Truesdell v. Chesapeake & O. R. Co., 159 Ky. 718 (169 S.W. 471); Glunt v. Pennsylvania R. Co., 249 Pa. 522 (95 A. 109); Schaeffer v. Illinois Cent. R. Co., 172 Ky. 337 (189 S.W. 237); Holmberg v. Lake Shore & M. S. R. Co., 188 Mich. 605 (155 N.W. 504); Clark v. Chicago G. W. R. Co., 170 Iowa 452, 152 N.W. 635; Ross v. Sheldon, 176 Iowa 618, 154 N.W. 499.

The true test of employment in such commerce in the sense intended is: Was the employee, at the time of the injury, engaged in interstate transportation or in work so closely related to it as to be practically a part of it?" Chicago, B. & Q. R. Co. v. Harrington, 241 U.S. 177, 60 L.Ed. 941, 36 S.Ct. 517.

See, also, Shanks v. Delaware, L. & W. R. Co., 239 U.S. 556, 60 L.Ed. 436, 36 S.Ct. 188; McBain v. Northern Pac. R. Co., 52 Mont. 578 (160 P. 654); Karras v. Chicago & N.W. R. Co., 165 Wis. 578 (162 N.W. 923); Pedersen v. Delaware, L. & R. Co., supra.

Plaintiff, it is true, was not, at the instant he was injured, engaged in distributing ties along the defendant's track, but was in charge of the train and the instrumentalities employed by him immediately preceding the time when the return trip was entered upon, and was proceeding therewith to the defendant's shops at Clarion. Under the holding of the cases cited, plaintiff and defendant were, at the time of the injury, engaged in work so closely related to interstate commerce as to be a part thereof. The question has been so often and elaborately discussed that we content ourselves with the simple statement of the rules, and the citation of a few of the authorities. Pedersen v. Delaware, L. & W. R. Co., supra; Lamphere v. Oregon R. & N. Co., 116 C. C. A. 156; San Pedro, L. A. & S. L. R. Co. v. Davide, 127 C. C. A. 454; Knowles v. New York, N. H. & H. R. Co., 164 A.D. 711 (150 N.Y.S. 99); Louisville & N. R. Co. v. Walker's Admr., supra; Alabama G. So. R. Co. v. Skotzy, 196 Ala. 25 (71 So. 335); Peery v. Illinois Cent. R. Co., 123 Minn. 264 (143 N.W. 724); Chesapeake & O. R. Co. v. Kornhoff, supra; St. Louis, S. F. & T. R. Co. v. Seale, 229 U.S. 156, 57 L.Ed. 1129, 33 S.Ct. 651.

But defendant was in no wise prejudiced by the submission of the case under the Federal act, even if it were conceded that plaintiff was not, at the time, engaged in interstate commerce, as no question of assumption of risk is involved, and the rule of comparative negligence, as established by Section 2071, Supplement to the Code, 1913, is the same as under the Federal act.

II. At the close of plaintiff's testimony, counsel for defendant moved the court to withdraw from the jury the separate grounds of negligence alleged in his petition, and to direct it to return a verdict in its favor. The first motion was sustained in part; the motion for directed verdict was overruled. Error is predicated upon both rulings.

Much difficulty was encountered by the engineer of the train No. 130 in keeping up steam during the day. During the forenoon, stops were made at different places, while extra fuel was carried by the crew and section men. The engine and caboose returned to Clarion at noon, and plaintiff informed the chief dispatcher of the defective condition of the engine, and requested another. No engine was available at that time, and he was directed to proceed, and do the best he could with the engine in question. The difficulty to keep up steam continued during the afternoon, and the stop at Cornelia, where the accident occurred, was due to the failure of the engine. At 5:35, plaintiff received an order at Thornton to return to Clarion ahead of No. 87, the local running from Hayfield, Minnesota, to Clarion, Iowa.

Under the rules of defendant, it was the duty of the dispatcher to deliver a copy of this order to the crew of No. 87, but for some reason, this duty was neglected. Plaintiff, at the time he received the order, was informed of the whereabouts of No. 87. None of the crew of this train knew of No. 130, or that it was running in backward motion ahead of it. There was no turntable at Thornton, and the engine from that point and to Clarion was required to run to Cornelia backward, pulling the caboose in front.

The rear brakeman is generally the flagman, under the rules of defendant, and it is his duty to protect the train from the rear, by going back a sufficient distance with a light, torpedoes, or other means provided and in use for that purpose.

The grounds of negligence charged, which were submitted to the jury, were, in substance, that defendant was negligent in failing to order its crew in charge of No. 87 to proceed with caution, prepared to stop within their vision; that, after notice of the defective condition of the engine attached to No. 130, it was negligent in permitting No. 87 to follow so closely at a dangerous rate of speed, in not providing the crew of No. 87 with a copy of the order to plaintiff to proceed to Clarion ahead of it, and in not warning its crew of the location of No. 130, in permitting No. 87 to run at a high and dangerous rate of speed around a sharp curve at Cornelia, and in the vicinity of embankments partially obscuring the vision of the engineer, and in not proceeding with the engine under control and prepared to stop in time to avoid collisions; and other grounds of substantially the same import.

It is the contention of counsel for appellant that it was the duty of the conductor in charge of the train, when it stopped at Cornelia, to direct the rear brakeman to perform the duties of flagman, and to see to it that the train was fully protected from the rear; and that his failure to attend to this duty upon the occasion in question was the sole cause of the collision. A rule of defendant's, known as No. 99, provides, in substance, that, when a train is stopped or delayed, under circumstances when it may be overtaken by another train, it shall be the duty of the flagman to go back with stop signals and torpedoes a sufficient distance to...