Freeman v. Frasher

• Decision Date: 21 May 1928
• Docket Number: 11919.
• Parties: FREEMAN et al. v. FRASHER.
• Court: Colorado Supreme Court

268 P. 538

84 Colo. 67

FREEMAN et al. v. FRASHER.

No. 11919.

Supreme Court of Colorado, En Banc.

May 21, 1928

Rehearing Denied June 11, 1928.

Error to District Court, City and County of Denver; Henley A Calvert, Judge.

Action by Bonnie E. Frasher, administratrix of the estate of Harry E. Frasher, deceased, against W. R. Freemand and another, as receivers of the Denver & Salt Lake Railroad Company. Judgment for plaintiff, and defendants bring error.

Affirmed.

Smith &amp Brock and Elmer L. Brock, all of Denver, for plaintiffs in error.

Rees D. Rees and C. E. Wampler, both of Denver, and J. J. Laton, of Long Beach, Cal., for defendant in error.

DENISON C.J.

The defendant in error brought suit against plaintiff in error under the Federal Employers' Liability Act, April 22 1908, c. 149, 35 Stat. 65 (45 USCA §§ 51-59; U.S. Comp. St §§ 8657-8665), and had a verdict and judgment for $7,500 for negligence which caused the death of her husband. The case comes here on errpr, and the defendants make the following points for reversal:

(1) The deceased was not engaged in interstate commerce when killed.

(2) There is no proof of defendants' negligence.

(3) The defendants' negligence, if any, was not the proximate cause of the accident.

(4) The verdict must be presumed to be excessive because contributory negligence was unquestionable.

(5) The particular allegations of negligence were not proved.

(6) Instruction No. 4, requested by defendants, should have been given.

The essential facts are as follows: Frasher, the deceased, was the engineer of a steam crane, an engine for hoisting heavy things and loading them onto cars and like work. His duty required him to occupy the cab of the crane from whence he operated it. An iron pipe conducted the steam from the boiler through the cab to the engine. At Leyden Junction on the defendants' road, in a pumphouse, they operated a pump to raise water for their locomotives. This pump was so worn that it had to be removed and another installed. It had been laid on the defendants' right of way, about 10 feet from the track, and had remained there about three months. The crane was fixed on a flat car and was operated from thence. On the day of the accident it was attached to a train and hauled to Leyden Junction to take up the pump in order to repair or otherwise dispose of it and to get it off the right of way. During this operation a joint in said iron pipe parted and filled the cab with steam, and Frasher was found toward the rear of the cab, caught in the machinery, hurt, and burned so badly that he died. The plaintiff's theory is that he rushed back to shut off the steam and was caught because it blinded him. The defendants claim that he ought to have stepped out of the car to safety, which he might have done.

1. Was Frasher engaged in interstate commerce? We think he was. He was engaged in clearing the right of way from matter which did not belong there. This is ordinary work incident to the maintenance of the right of way which is an essential factor in the operation of defendants' interstate business, 'so closely related to it as to be practically a part of it.' Ind. Accident Com. v. Davis, 259 U.S. 182, 185, 42 S.Ct. 489, 490 (66 L.Ed. 888); C., B. & Q. Co. v. Harrington, 241 U.S. 177, 36 S.Ct. 517, 60 L.Ed. 941; Pedersen v. D. L. & W. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas. 1914C, 153, and other cases. We think it not materially different from the removal of fallen rocks and trees, which, even though they do not obstruct the track, yet in the exercise of prudent railroad operation are ordinarily removed from the right of way. Kusturin v. C. & A. R. Co., 287 Ill. 306, 122 N.E. 512; D. & R. G. Co. v. Davello, 63 Colo. 71, 165 P. 254; Clemence v. Hudson, etc., R. Co. (C.C.A.) 11 F.(2d) 913. In this last case the deceased met his death while cleaning rubbish out of a shaft connecting with a subway running under the North river between New York and Jersey City. The opinion says:

'We do not suppose it will be argued that, had the decedent been employed in cleaning up the right of way itself, he would not have been engaged in interstate commerce.'

The Circuit Court of Appeals, then, agree with us that cleaning the right of way is interstate commerce; defendants concede that cleaning the 'roadbed' is interstate commerce and many cases so hold; we can see no difference in principle between cleaning the right of way and cleaning that part of it which constitutes the roadbed; we...