Ericksen v. Southern Pac. Co
| Decision Date | 08 August 1951 |
| Citation | 234 P.2d 279 |
| Court | California Court of Appeals Court of Appeals |
| Parties | ERICKSEN v. SOUTHERN PAC. CO. Civ. 14687. |
Dunne, Dunne & Phelps and R. Mitchell S. Boyd, San Francisco, for appellant.
Leo Fried, Oakland, William P. Callahan, San Francisco, of counsel, for respondent.
Action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. for failure to provide an employee a safe place for performance of services. A jury awarded plaintiff, the employee, $18,000 damages. Defendant appeals.
Questions Involved.
1. Was plaintiff at time of injury engaged in interstate commerce?
2. Is there any evidence of defendant's negligence?
3. Was the verdict excessive?
Facts.
There is practically no conflict in the evidence save as to the inferences which might be drawn therefrom. Plaintiff, 64 years old, has worked for defendant since 1918. He is a lumber inspector. Whenever defendant wanted to purchase lumber from a lumber company plaintiff would go to the latter's premises, inspect their product, and, at his discretion, accept suitable lumber, which he would grade and tally and accept for shipment. He was in complete charge of the inspection operation and was 'his own boss.' Three or four months prior to the accident he was sent to inspect ties at the Cheney Lumber Company at Central Point, Oregon, by his superior, defendant's chief lumber inspector. The dock where the ties were loaded was the property of the Cheney Lumber Company. The dock, approximately 150 to 200 feet long, was between 10 and 11 feet above the defendant's spur tracks. Cheney employees piled the ties on the dock. Plaintiff's duties were to examine ties and designate those acceptable. These were then pulled out by Cheney employees and loaded in defendant's freight car standing on the spur. Inspectors were instructed to turn the ties over and inspect all four sides. Generally this turning over was done by Cheney employees although occasionally plaintiff helped turn them over and load them. The ties could not be loaded without the inspector's approval. Also he directed the loading. The ties were the property of Cheney and did not become the property of defendant until accepted and paid for.
On the day of injury, the ties were piled about 7 feet high, about 15 ties high. The ends of some were even with the end of the dock while others were protruding beyond it a little. There was no room on the dock in front of the ends of the ties. Plaintiff was standing on the dock beside the pile of ties. He leaned over the edge to inspect the ends which 'is the only way you could inspect them.' He was standing on his right foot, leaning over the pile, his right hand against the pile, his left foot not on the dock but in the air. He was leaning over as far as he could with his back bent down. After he looked over the ties as far as he could reach and see he tried to step back and to step on his left foot. He was still off balance. Something was under that foot 'whether it was a pebble or piece of wood or something' it threw him off and he fell to the railroad track. '* * * there was something under the bottom of my foot that made my ankle twist a little.' He received the injury hereafter discussed. In a report to defendant made four days after the accident he stated, 'stepped on piece of bark; lost balance, fell over edge of dock * * *'
1. Interstate Commerce.
The Federal Employers' Liability Act applies only to employees of a railroad who are employed in interstate commerce. 'Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter. Apr. 22, 1908, c. 149, § 1, 35 Stat. 65; Aug. 11, 1939, c. 685 § 1, 53 Stat. 1404.' 45 U.S.C.A. § 51.
Of the ties accepted by plaintiff and loaded into defendant's cars, some were shipped by defendant to Mexico and other states for use by defendant and other railroads. Some were used by defendant's main line. Some were put in new tracks and others in replacements for old worn out ties. Some were put in the tracks without first being treated. Defendant contends that plaintiff was not engaged in any duty which could be considered under the above definition, as being in interstate commerce. Defendant relies strongly on Holl v. Southern Pacific Co., D.C., 71 F.Supp. 21. There plaintiff Holl was employed by the Southern Pacific which is engaged in both interstate and intrastate commerce. She was a clerk in the freight claim department. When a claim for lost or damaged freight came in, she wrote, from memory, on a form, the route over which the freight had travelled. From this, a typist made a form which went to the auditor who allowed the claim and apportioned the loss to the various carriers over the lines of which the shipment had been carried. In an action under the Federal Employers' Liability Act for injuries received in the scope of her employment the court held that her work 'was in no way a part of interstate commerce or in furtherance of it.' 71 F.Supp. at page 23. It pointed out, too, that 71 F.Supp. at page 23. It is obvious that Holl's duties can in no wise be compared with those of plaintiff who selected ties which were then taken by the railroad to places where they were placed in the tracks used in interstate commerce. This act certainly was as much in furtherance of interstate commerce or as closely and substantially affecting such commerce as the acts in some of the cases cited with approval in the opinion in the Holl case as being acts in interstate commerce. Thus, in Harris v. Missouri Pac. R. Co., 1944, 158 Kan. 679, 149 P.2d 342, employees loading barrels of oil to be used in filling lanterns and oil cans used in oiling railroad engines and machines; in Trucco v. Erie R. Co., 1943, 353 Pa. 320, 45 A.2d 20, a blacksmith's helper engaged in making locomotive parts; in Northwestern Pacific Ry. Co. v. Industrial Acc. Comm., 1946, 73 Cal.App.2d 367, 166 P.2d 334, a brakeman being transported on company conveyance after leaving his train one car of which was in interstate commerce; in Agostino v. Pennsylvania R. Co., D.C., 1943, 50 F.Supp. 726, a trackman employed in spreading cinder ballast in surfacing tracks; an employee of a roundhouse, the facilities of which were used in housing and preparing locomotives Zimmerman v. Scandrett, C.D.1944, 57 F.Supp. 799; a member of section crew on way to obtain tools, Patsaw v. Kansas City Southern Ry. Co., D.C.1944, 56 F.Supp. 897; a mechanic's helper assisting in repairing automatic stoker in a locomotive, Edwards v. Baltimore & Ohio R. Co., 7 Cir., 1942, 131 F.2d 366; a guard at a terminal, Albright v. Pennsylvania R. Co., 1944, 183 Md. 421, 37 A.2d 870; a signalman repairing lighting fixtures of a railroad station, Scarborough v. Pennsylvania R. Co., 1944, 154 Pa.Super. 129, 35 A.2d 603; an employee whose duty it was to clean up the railroad's tracks used partly to carry interstate commerce, Piggue v. Baldwin, 1942, 154 Kan. 708, 121 P.2d 183; an employee loading posts to be used in repairing roadway, Rainwater v. Chicago, R. I. P. Ry. Co., 1945, 207 La. 681, 21 So.2d 872; a railroad's emergency flood control worker, whose duty it was to fill sand bags and place them on a flat car which was to move over tracks used for movement in interstate commerce, the bags being placed along the tracks to protect them from existing flood waters, Skanks v. Union Pacific Railroad Co., 1942, 155 Kan. 584, 127 P.2d 431; a locomotive fireman on train engaged in moving empty coal cars coming from outside state to coal mines in state for loading and transporting coal to other states, Louisville & N. R. Co. v. Stephens, 1944, 298 Ky. 328, 182 S.W.2d 447; were all held to be engaged in interstate commerce. Plaintiff here was 'furthering, i. e., promoting or helping along, present or future interstate commerce.' 71 F.Supp. at page 24. He 'was doing something which laid the foundation for, and was in aid of another or subsequent act of interstate commerce or a step towards it.' 71 F.Supp. at page 25. This was true even though it might be said that he was engaged in a 'borderline occupations'. 71 F.Supp. at page 25. In Shelton v. Thomson, 7 Cir., 148 F.2d 1, 3, the court said: 'A car can not travel even in interstate commerce, without wheels.' Neither can it travel without tracks laid on ties.
The holding of the courts on what constitutes service in interstate commerce has not been uniform. There are some jurisdictions where the interpretation has been a very limited and narrow one. Defendant has cited some of the cases which, while not on facts similar to those in our case, lend comfort to the contention that plaintiff was not acting in interstate commerce. However, those above mentioned taken from the Holl case established the better rule. A reading of the opinion in Northwestern Pacific Ry. Co. v. Industrial Acc. Comm., supra, 73 Cal.App.2d 367, 166 P.2d 334, in which a number of California decisions are reviewed shows that California follows the more liberal rule.
2. Negligence.
To recover under the act, the employee must prove that his injuries were proximately caused by the negligence of the employer. Blunk v. Atchison, T. & S. F. Ry. Co., 97 Cal.App.2d 229, 217 P.2d 494. Here the negligence charged is that the employer negligently failed to provide a safe place for plaintiff to perform his duties. ...
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