Gidley v. Chicago Short Line Ry. Co.

• Decision Date: 02 December 1931
• Docket Number: No. 20071.,20071.
• Parties: GIDLEY v. CHICAGO SHORT LINE RY. CO.
• Court: Illinois Supreme Court

346 Ill. 122

178 N.E. 399

GIDLEY

v.CHICAGO SHORT LINE RY. CO.

No. 20071.

Supreme Court of Illinois.

Oct. 23, 1931.

Rehearing Denied Dec. 2, 1931.

Error to First Branch, Appellate Court, First District, on Appeal from Superior Court, Cook County; A. Clay Williams, Judge.

Action by Raymond E. Gidley against the Chicago Short Line Railway Company. Judgment for plaintiff was affirmed by the Appellate Court, and defendant brings certiorari.

Judgments of Appellate Court and superior court reversed.Knapp, Beye, Allen, Cochran & Cushing, of Chicago (Joseph L. Earlywine and Paul R. Conaghan, both of Chicago, of counsel), for plaintiff in error.

H. A. Barnhardt, of Chicago, for defendant in error.

HEARD, J.

At the hour of 8:40 p. m. on May 9, 1927, a switch engine operated by the Chicago Short Line Railway Company, plaintiff in error, collided with a spout of a coal chute which was also operated by plaintiff in error. Raymond E. Gidley, a switchman, defendant in error, who was in the gangway of the engine, jumped to the ground, sustaining a dislocated semilunar cartilage of the right knee. Gidley brought suit against plaintiff in error in the superior court of Cook county under the Federal Employers' Liability Act (45 USCA §§ 51-59), and upon a trial by jury obtained a verdict for $26,000. He remitted $12,000, and judgment was entered in his favor for $14,000. This judgment was affirmed by the Appellate Court, and the case is here on certiorari.

Defendant in error, who was about 30 years old, had been in the service of plaintiff in error for about a year previous to the accident, and before that had worked for another railroad for about thirteen years. On the day in question his switching crew commenced work at 4 o'clock in the afternoon, after which time, and before the accident, twenty-two switching movements were made, in the course of which 109 cars were switched. These movements were all within the state of Illinois. Four of the cars thus handled were assigned to interstate commerce. Just prior to the last switching movement before the accident, the yardmaster, who directed the movements of the engine and its crew in the yard, told the crew to make the movement and then go to lunch. This movement was taking an empty car from the boiler house inside of the yard to the west side of the boiler house inside of the yard, which car was thereafter on May 11, 1927, consigned to Colehour, Ill. After leaving the car at the west side of the boiler house, the engine backed to a main track, along which it proceeded until it came to a switch track leading south toward the switchmen's shanty, at which place the lunches had been left. Defendant in error threw the switch which let the engine onto this track, signaled for the engine to go ahead, and then got upon the engine and into the cab and got his overcoat to take it to one of the lockers in the switch shanty before eating. The engine moved south at the rate of two or three miles an hour, with the fireman and Gidley on it, where Gidley's duties required him to be when the engine was in motion and he was not engaged in throwing a switch. Along the east side of this switch track, between the main track and the switchmen's shanty, was the coal chute 36 feet high, 22 feet long and 16 feet wide. This chute had three spouts, facing west, each of which was 4 feet and 6 inches long, 3 feet wide, and had sides tapering from 18 inches where it fastened to the building to 8 inches at the end. Each of these spouts operated on a cable running from the end of each over a sheave; a counterweight on the cable running up and down the side of the chute. The natural position of each spout, when elevated, was at an angle of 45 degrees. Each could be pulled down by a hook or rod placed in its end by a person standing on the tank of an engine, and, when this was done, coal slid by gravity from the chute through the spout and into the tender. The bottoms of these spouts were fastened to the chute about 18 feet above the ground, and, when the spouts were pulled down, they extended over the tracks. The collision was with the southernmost spout of the coal chute, which was down. There was a crash, the cab was wrenched from the engine, and the fireman and defendant in error jumped to the ground.

This action is based on the Federal Employers' Liability Act, the provisions of which, so far as they are here pertinent, are as follows: ‘Every common carrier by railroad while engaging in commerce between any of the several States or Territories * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * from the negligence of any * * * employees of such carrier.’ 45 USCA § 51. By the plain and unambiguous terms of the act and the unanimous decisions of the Supreme Court of the United States and of the courts of last resort of the thirty-nine states before which the question has arisen, it is a prerequisite to liability on the part of a railroad that both it and the employee at the time of the injury be actually engaged in interstate commerce. By judicial construction this term, ‘engaging in interstate commerce,’ has been held to mean ‘engaged in interstate transportation or in work so closely related thereto as to be practically a part of it.’ Chicago & Northwestern Ry. Co. v. Bolle, 284 U. S. 74, 52 S. Ct. 59, 76 L. Ed. 173;Shanks v. Delaware, Lackawanna & Eastern R. Co., 239 U. S. 556, 36 S. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797.

Plaintiff in error contends that at the time of the injury defendant in error was not engaged in an act of interstate commerce or in work so intimately related thereto as to be a part of interstate commerce in any practical sense. It is difficult to lay down a definite rule marking the division line between intrastate and interstate commerce in this class of cases, so as to be able to determine with precision and exactness in each case as it arises whether the injured employee was or was not engaged in interstate commerce within the meaning of the acts of Congress. To entitle a member of a switching crew in a freight yard to hold the railroad company liable for a personal injury under the Federal Employers' Liability Act (45 USCA §§ 51-59), he must show that at the time of the injury he was engaged in interstate commerce or with its instrumentalities; and this burden is not met merely by showing that in the yard where he was employed cars containing interstate as well as intrastate shipments were handled. Illinois Central Railroad Co. v. Industrial Board, 284 Ill. 267, 119 N. E. 920;Chicago Junction Railway Co. v. Industrial Board, 277 Ill. 512, 115 N. E. 647;Birmingham Belt Railroad Co. v. Ellenburg, 213 Ala. 146, 104 So. 269;Id., 269 U. S. 569, 46 S. Ct. 25, 70 L. Ed. 416;Smith v. Chicago, Milwaukee & St. Paul Railroad Co., 157 Minn. 60, 195 N. W. 534;Id., 264 U. S. 582, 44 S. Ct. 331, 68 L. Ed. 860;Grigsby v. Southern Railway Co. (C. C. A.) 3 F.(2d) 988; Id., 268 U. S. 704, 45 S. Ct. 638, 69 L. Ed. 1166;Barbee v. Davis, 187 N. C. 78, 121 S. E. 176; Id., 264 U. S. 588, 44 S. Ct. 401, 68 L. Ed. 863;Coal & Coke Railway Co. v. Ewing, 247 U. S. 521, 38 S. Ct. 583, 62 L. Ed. 1246;Lehigh Valley Railroad Co. v. Barlow, 244 U. S. 183, 37 S. Ct. 515, 61 L. Ed. 1070;Louisville & Nashville Railroad Co. v. Parker, 165 Ky. 658, 177 S. W. 465;Id., 242 U. S. 13, 37 S. Ct. 4, 61 L. Ed. 119;Illinois Central Railroad Co. v. Behrens, 233 U. S. 473, 34 S. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163;Erie Railroad Co. v. Welsh, 242 U. S. 303, 37 S. Ct. 116, 61 L. Ed. 319.

Whether or not an employee is engaged in interstate commerce at the time of his injury depends upon the facts of the particular case, and he may be so engaged at one moment and a few minutes later he may not be so engaged. The question is not what the employee had been doing or what he expected to do, but what he was doing at the time he was injured-i. e., whether or not at that particular time he was engaged in interstate commerce or in work so closely related thereto as to be practically a part of it. Spencer v. Chicago & Northwestern Railway Co., 336 Ill. 560, 168 N. E. 686;New York Central & Hudson River Railroad Co. v. Carr, 238 U. S. 260, 35 S. Ct. 780, 59 L. Ed. 1298. In Erie Railroad Co. v. Welsh, supra, where a yard conductor on an interstate railway was injured while alighting from a slowly moving freight engine for the purpose of reporting to the yardmaster's office for further orders, having executed all previous orders, it was held he was not employed in interstate commerce so as to render applicable the Federal Employers' Liability Act (45 USCA §§ 51-59) although the orders which he would have received had he not been injured would have required him immediately to make up an interstate train; that the true test as to whether an injured railway employee was engaged in interstate commerce at the time he received his injuries so as to make applicable the Employers' Liability Act was the nature of the work he was doing at the time of the injury, and that the mere expectation that he would presently be called upon to perform a task in interstate commerce was not sufficient to bring the case within the act. In ...