Graber v. Duluth, S. S. & A. Ry. Co.

• Decision Date: 12 January 1915
• Citation: 150 N.W. 489,159 Wis. 414
• Court: Wisconsin Supreme Court
• Parties: GRABER v. DULUTH, S. S. & A. RY. CO.

159 Wis. 414

150 N.W. 489

GRABER

v.DULUTH, S. S. & A. RY. CO.

Supreme Court of Wisconsin.

Jan. 12, 1915.

Appeal from a Judgment of the Circuit Court for Douglas County; W. J. Turner, Circuit Judge. Affirmed.

Action to recover for a personal injury.

Defendant was engaged in interstate and intrastate commerce of railroad transportation character. Plaintiff was in its employ, his business, in the main, being that of a brakeman between Soo Junction and Marquette in the State of Michigan. Soo Junction was a terminal transfer point where cars were brought from within and without the state and placed in or made up into trains for completion of transit. That service was essential to the interstate as well as the intrastate feature of defendant's business. February 24th, 1912, in the early part of the evening, plaintiff with his train crew completed the trip for the day from Soo Junction to Marquette and return. On such return, several interstate cars were brought in. The remaining duty for the day was to sidetrack the cars, put away the engine in the roundhouse, locate and properly close the caboose and do work in the yard, if time should permit, and such were the orders from the conductor. After his train work was done, pursuant to duty, he set the brakes on some cars on the side track so they would not be unduly disturbed by the movement of the through train which was about to exercise the necessary movements to take in some cars and prepare to proceed upon its course. It was an interstate train. After doing such work, plaintiff proceeded to a nearby saloon, off the right of way, to get a drink. The saloon was so located that the through train, for a considerable distance up and down the track obstructed the way therefrom to the depot. It was a cold day and plaintiff had been out so long that he felt in need of refreshments. When he had last seen his conductor, of whom it was his duty to inquire as to further orders before going to supper, he was at the depot. After getting the drink plaintiff started for the depot, for the purpose of obtaining final instruction and then going to supper at a place on the right of way, on the depot side of the standing train. Such train had completed the required switching, taken in several cars, and the engine was about to be spotted at the water tank to take in a supply of water and be in readiness to depart. As plaintiff reached the train and was in the act of climbing through between two gondola cars, without any signal being given, it was suddenly started, whereby his right foot was caught and so crushed that amputation of the leg between the ankle and knee, was necessary.

Upon proof of the foregoing, the particulars of the occurrence, the nature of the injury, its effect, evidence tending to prove that trains often stood as in the particular case, and as often as half an hour to an hour and a half, leaving no way of getting from the side of the track where plaintiff was before endeavoring to pass through between the cars, other than by executing some such movement as he attempted or go around the end of the train, and that trainmen commonly took the short cut and depended for warning of danger upon a signal by ringing of the engine bell which commonly occurred before moving a train,--the cause was submitted to the jury, resulting in a verdict of $10,000 for plaintiff upon which judgment was rendered.Thomas S. Wood, of Duluth, Minn., and W. R. Foley, of Superior, for appellant.

John C. Kleczka and Glicksman, Gold & Corrigan, all of Milwaukee (W. P. Crawford, of Superior, of counsel), for respondent.

MARSHALL, J.

Appellant's complaint is of submission of the case to the jury on the question of whether respondent, at the time he was injured, was engaged in interstate commerce, and within the scope of the Federal Employers' Liability Act.

[1][2] Whether a particular service or engagement therein is of interstate commerce character, is a question of law. The facts being undisputed, jury interference is unnecessary, and, if objected to, is improper, though not, necessarily, prejudicially so. Where the facts are so in dispute as to justify from one viewpoint, a finding in respect thereto on any vital element one way, and from a different aspect in a different way, the truth of the matter is for jury solution under proper instructions, and the legal conclusion is for the court to determine, based thereon. North Carolina R. R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159.

[3] Commerce between a point in one state and a point in another, is interstate commerce. Those engaged in carrying on such commerce, either as principal or employé, are engaged in interstate commerce, and one while actually performing a service essential to or so closely connected with such business as to be substantially a part of it,--an act in the carrier service of the interstate work,--though not necessarily exclusive of all intrastate features, is in the performance of interstate service in the carrying on of interstate commerce, within the meaning of the Federal Employers' Liability Act. Such is its scope, as the Federal Supreme Court has held in this language:

Every common carrier railroad while engaged in commerce between the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce. Pedersen v. Del., L. & W. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; North Carolina R. R. Co. v. Zachary, supra; Illinois Cent. R. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163.

[4] Thus it will be seen, that the test of whether the Federal Act applies to any particular situation is not whether the particular person directly causing the injury was, at the time thereof, engaged in interstate business, nor whether the act in which the person was engaged was, exclusively, an interstate commerce service; but whether the person or corporation charged with liability was engaged at the time it occurred in such commerce and the particular service in progress and environing or characterizing the employer's activity at the time of the injury, was of that nature,--its cast in that regard being efficient if the work was a substantial part of interstate commerce. Where the particular work is entirely independent of interstate commerce service, the Federal Act does not apply, as in case of the switching movement of intrastate cars solely for intrastate purposes, Illinois Cent. R. Co. v. Behrens, supra,--an act the performance of which is a matter of indifference, so far as interstate commerce is concerned. Pedersen v. D., L. & W. R. Co., supra. But, as indicated, if the particular act, in any substantial part, is within the interstate field then the Federal law rules the situation, if either party sees fit to stand upon legal right in the matter. That may be done, or waived, expressly or...