Ewing v. Coal & Coke Ry. Co.
| Decision Date | 07 May 1918 |
| Docket Number | 3258. |
| Citation | 96 S.E. 73,82 W.Va. 427 |
| Parties | EWING v. COAL & COKE RY. CO. |
| Court | West Virginia Supreme Court |
Submitted April 9, 1918.
Syllabus by the Court.
Where an empty car marked "shop" is being switched from the yards of one carrier, where it had stood unloaded for several days, to the interchange track of a connecting carrier for the purpose of returning it to the latter, the owner thereof, for repairs, the switching being wholly within the state, an employé injured while engaged in the operation is not engaged in interstate commerce, though the car was forwarded promptly by its owner to its shop in another state for repair.
The mere use of the word "shop" on a car is not equivalent to a designation for haulage in interstate traffic.
Though the federal Safety Appliance Act of March 2, 1893 (27 Stat 531, c. 196), as amended March 2, 1903 (Act Cong. March. 2 1903, c. 976, 32 Stat. 943 [[[U. S. Comp. St. 1916, §§ 8605-8615), and April 14, 1910 (Act Cong. April 14, 1910, c 160, 36 Stat. 298), contains no express language conferring a right of action for the death or injury of an employé occasioned by a failure to comply with its requirements, a right of action therefor, nevertheless, is within the contemplation and intendment of the act.
The requirements of the federal Safety Appliance Act, as amended, are mandatory and embrace all cars used on any railroad that is a highway of interstate commerce, whether the particular cars are at the time employed in such commerce or not, and includes employés injured through a failure to comply with its terms, even though engaged in duties unconnected with interstate commerce.
The maintenance of one grabiron or handhold on each side of the car near one end is not a compliance with section 4 of the federal Safety Appliance Act of March 2, 1893 (U. S. Comp. St. 1916, § 8608), as the necessity of having such grabiron or handhold upon each side of the car near each end of the car is fairly contemplated by the language of the act.
The suspension clause of the order of the Interstate Commerce Commission entered on March 13, 1911, pursuant to authority conferred upon the commission by section 3 of the act of 1910 (U. S. Comp. St. 1916, § 8619), did not operate to extend the time for equipping each car with four grabirons on the sides, because the order expressly provides that the extension of time shall not be construed to relieve carriers from complying with the requirements of section 4 of the act of March 2, 1893.
The suspension clause of the order of the Interstate Commerce Commission of March 13, 1911, did not relieve carriers from complying with the positive provision of the same order requiring four sill steps on each car, "one near each end on each side of the car," but imposed an immediate duty to equip each car with the number of sill steps therein mentioned.
The grant to carriers of an extension of time within which to comply with the requirements of the commission's order of March 13, 1911, was a valid suspension only for the purpose of deferring the standardization of sill steps and other appliances therein mentioned with respect to their exact location, dimensions, and manner of application, and did not relieve from the necessity of equipping each car immediately with four secure sill steps of a kind and character reasonably adequate and sufficient to answer the object and purpose contemplated by the federal Safety Appliance Act.
Though the immediate occasion for passing the laws requiring grabirons was undoubtedly "for greater security to men in coupling and uncoupling cars," yet these laws are not confined to the protection of employés only when so engaged. Carriers are liable to employés in damages whenever the failure to obey the safety appliance acts is the proximate cause of injury to them when engaged in the discharge of duty.
The liability of an interstate railway company under the federal Safety Appliance Act to an employé injured through a violation of the commands of those statutes that certain safety appliances be installed upon railway cars used upon a highway of interstate commerce exists, although the employé when injured was engaged in returning the defective car to its owner for repairs.
Error to Circuit Court, Kanawha County.
Suit by Oscar V. Ewing against the Coal & Coke Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Price, Smith, Spilman & Clay, of Charleston, for plaintiff in error.
Surber & Edwards and Thos. A. Bledsoe, all of Charleston, for defendant in error.
Plaintiff, an "extra" brakeman employed by the Coal & Coke Railway Company, a common carrier engaged in interstate commerce, though its line of railroad is wholly within this state, sued the defendant and recovered judgment for an injury received on the night of November 12-13, 1915, while engaged in switching an empty gondola coal car, the property of the Kanawha & Michigan Railway Company, from the Charleston yards of the defendant to the interchange track of the defendant and the Kanawha & Michigan Railway Company. The car was delivered empty to defendant on or about November 1, 1915, after its return from an interstate trip to Ohio. While standing in defendant's yards, it was condemned as being unfit for use because of a defective end sill, and marked "shop" by the car inspector acting for and in behalf of each of the two companies; and the switching from which the injury occurred was for the purpose of returning it to its owner, the Kanawha & Michigan Railway Company, and within the next two days it was forwarded by that company to Hobson, Ohio, for repairs. The car was equipped on each end with grabirons, and on each side at diagonal corners with grabirons and sill steps, and plaintiff in the course of the switching operations attempted to board the car at a point on the side near the end where there were not, and never had been, grabirons and a sill step. Owing to the darkness, he failed to note their absence at that point, and, acting upon the supposition that the car was equipped with these appliances, he undertook to place his foot in the still step, and to catch the grabirons with his right hand, and, missing both, his foot fell to the rail of the track, and one of the wheels of the car passed over it, severely bruising it and crowding the bones together, thereby destroying or limiting his capacity to perform manual labor.
The first contention of the plaintiff in error, defendant below, is that the carrier at the time of the injury was engaged in, and plaintiff employed in, interstate commerce, and that therefore the action should have been brought under the federal Employers' Liability Act (Acts Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]). This contention cannot prevail. Admitting that, if the switching had occurred as part of a through movement of the empty car for repair from one state to another, defendant would have been engaged in interstate commerce , yet the facts of the present case do not show that the work done was of that nature. The car was not moving under a through bill of lading or such other designation as would indicate an interstate routing. The mere presence of the word "shop" on the car is not equivalent to a designation for haulage to some interstate point. When defendant returned the car to the connecting carrier and owner, whose dominion over it was complete, defendant did not know and had no means of knowing whether the owner would repair the car in its own yards or send it to one of its shops, as it later did; nor that the car might not stand indefinitely in the yards of its owner without anything being done to it. The character of the transportation, whether interstate or intrastate, must be determined in the light of a reasonable construction given to the word "shop" at the time of the injury, not at any later time; and at that moment plaintiff and his employer, the defendant, had no direction other than to return the car to the Kanawha & Michigan Railway Company, clearly an intrastate movement.
This case is unlike the cases of Delk v. St. Louis & S. F. R. Co., 220 U.S. 580, 31 S.Ct. 617, 55 L.Ed. 590, Great Northern Ry. Co. v. Otos, 239 U.S. 349, 36 S.Ct. 124, 60 L.Ed. 322, and Chicago, etc., R. Co. v. Wright, supra. In the Delk Case, the car in question was still loaded with interstate freight when set aside for repairs, and had not yet arrived at its destination, hence still bore some relation to interstate commerce. The Otos case also involved a car loaded with interstate freight, and in addition it was switched in connection with other cars which were clearly engaged in interstate commerce. In the Wright Case, the engine was being taken from one state to a repair shop in another, and was moving directly to an interstate destination under directions clear and explicit. But in the case now reviewed, there was at the time of the injury no means of ascertaining and apparently no one could foresee what course the Kanawha & Michigan would pursue with reference to it. The case comes more nearly under the principles laid down in Ill. Cent. R. Co. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051, Ann.Cas. 1914C, 163. See, also, Lehigh Valley R. Co. v. Barlow, 244 U.S. 183, 37 S.Ct. 515, 61 L.Ed. 1070, and C., B. & Q. R. Co. v. Harrington, 241 U.S. 177, 36 S.Ct. 517, 60 L.Ed. 941.
It seems clear, therefore, that plaintiff was not at the time of the accident engaged in interstate commerce, and it is the work that he is doing at the time of the injury that determines the...
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