Harrington v. Industrial Commission of Utah

• Decision Date: 29 September 1938
• Docket Number: 5969
• Court: Utah Supreme Court
• Parties: HARRINGTON et al. v. INDUSTRIAL COMMISSION OF UTAH et al

83 P.2d 270

96 Utah 32

HARRINGTON et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 5969

Supreme Court of Utah

September 29, 1938

Rehearing denied December 19, 1938.

Original proceeding by Kate D. Harrington and Horace Morgan Harrington to review an order of the Industrial Commission of Utah that the Commission was without jurisdiction to proceed with the cause or award compensation under the Workmen's Compensation Law for the death of Benjamin Harrington deceased employee.

ORDER ANNULLED AND CAUSE REMANDED.

A. H Hougaard, of Salt Lake City, for plaintiffs.

Bagley Judd & Ray, of Salt Lake City, for defendants.

MOFFAT, Justice. HANSON and LARSON, JJ., concur. FOLLAND, Chief Justice, WOLFE, Justice, dissenting.

OPINION

MOFFAT, Justice.

The parties agree that the writ of review in this case presents to this court for determination a single question. That question is: Was Benjamin Harrington, at the time he received the injury resulting in his death, engaged in an activity forming a part of a service in interstate commerce?

The Industrial Commission of the State of Utah concluded that deceased, at the time of the injury resulting in his death, was engaged in interstate commerce, and upon that finding, concluded and decided that the Industrial Commission of Utah was without jurisdiction to proceed with the cause or award compensation under the Workmen's Compensation Law of Utah, Rev. St. 1933, 42-1-1 et seq., no matter how meritorious the claim. Without attempting to separate facts from conclusions, the Commission stated in its findings:

"I. That on February 9, 1937 and for several years prior thereto the defendant Railroad Company owned and operated a railroad extending from Salt Lake City, Utah, to Payson, Utah, and was engaged in interstate Commerce and employed more than three employees and had complied with the laws of Utah pertaining to Workmen's Compensation, and the Great American Indemnity Company was the insurance carrier of said B. L. Ball as Receiver.

"II. That on February 9, 1937, and since November 1, 1936, Benjamin H. Harrington was in the employ of the defendant, B. L. Ball as Receiver of the Salt Lake and Utah Railroad Company, and was employed as a brakeman earning an average weekly wage of $ 19.81, working seven days per week; that on February 9, 1937 said Benjamin H. Harrington suffered an accidental injury while in the course of his employment in interstate commerce by said defendant, which resulted in his death on March 7, 1937.

"III. That at the time of said accidental injury the deceased was engaged and working as a brakeman on a train of seventeen cars operated by defendant southbound between Salt Lake City and Provo, Utah; and that said train contained and included a carload of interstate freight, to-wit, a car of scrap paper billed and being transported in interstate commerce from Salt Lake City, Utah, to Kalamazoo, Michigan, and a car of poultry feed originating at Salt Lake City and billed and being transported to American Fork, where the defendant Railroad Company was to deliver the car to the Utah Poultry Company at its place of business.

"The Utah Poultry Company and the Chipman Mercantile use the same industrial track and siding and in order to deliver the car of feed to that siding it was necessary to unlock and open gates across the railroad company's tracks to permit cars to enter the private premises of the companies above named. When said train reached the town of American Fork the crew thereof, consisting of Harrington and his fellow employees, detached the engine and the car of poultry feed from the train and moved down the main line about one-half mile, stopping at the switch leading to the siding of the Utah Poultry Company for the purpose of delivering said car of poultry feed; that the balance of the train was left one-half mile west of said point at said time in order to not leave said train within the business district of American Fork and in order to not obstruct the main street of said town with said train while the crew was switching and delivering said car of poultry feed to the Utah Poultry Company.

"That while delivering and spotting said car of poultry feed out of said interstate train it became necessary for said deceased to cross the public highway in American Fork in order to open said gates leading into the industrial siding into the Utah Poultry Company in order to enable deceased and other members of the crew to switch, deliver and spot said car of feed out of said interstate train; and while so crossing said highway to open said gate said deceased was struck by a motor truck being operated by Wayne Godfrey of Murray, Utah; * * *" (Harrington died shortly after from the effects of the injury.)

From the foregoing the Commission concluded "that at the time of said accident and injury said deceased and said B. L. Ball, as receiver of the Salt Lake and Utah Railroad Company were engaged in interstate commerce and said accident and injuries arose out of and during the course of interstate commerce."

The following statement of facts is agreed to by both parties. The diagram, not a scale drawing, will assist in following movements of the cars, engine, and parties:

[SEE DIAGRAM IN ORIGINAL]

Mr. Harrington was a brakeman of the crew which went on duty at Provo at 10:45 P. M., February 8, 1937. The crew proceeded to Springville, picked upon some cars and continued on with their train toward Salt Lake City. The crew usually tied up at Provo. It was the practice for the northbound crew to meet the train southbound from Salt Lake City at Cutler. Cutler is a station about two miles north (railroad directions) from American Fork. The two trains met at Cutler about 5:30 A. M., on February 9, 1937. The crew of the southbound train took the northbound train and the crew of which Mr. Harrington was a member took charge of the southbound train. The southbound train contained 17 cars; 16 of these were received from the Union Pacific Railroad Company, at South Salt Lake and one car loaded with scrap paper was picked up at the Salt Lake industry track of the Salt Lake and Utah Railroad Company, one of the defendants herein. This car contained a shipment to the Pioneer Paper Stock Co., at Kalamazoo, Michigan, moving from Salt Lake City to be delivered enroute to the Denver and Rio Grande Railroad at Grundy, a station near Provo, Utah. The train also contained a car of feed, moving from Salt Lake City to the Utah Poultry Company at American Fork, Utah. It is conceded that the entire train, with the exception of the car moving from Salt Lake City to Kalamazoo, Michigan, was wholly intrastate in character; but it is claimed in accordance with what is said to be the general rule that the presence of the interstate car impressed the whole train as interstate.

After the exchange of trains by the crews, the crew, of which Mr. Harrington was a part, moved the southbound train to a point about half a mile from the American Fork Station, stopped it there out of the highway traffic, detached the car of feed and moved it up to near the American Fork Station and stopped it there. The engine was detached, moved into the house or station track, "light," coupled onto the car of coal, at a place marked first position of the car of coal, and moved it out over the curve to the main line. The engine then moved the car of coal east (south, railroad directions) where it was uncoupled and held by the brakes while the light engine moved down and north (west) past the switch so as to be able to take the house track lead. The switch was then lined up with the curve to the house track lead and the engine moved thence into the curve to permit the car of coal to roll by gravity down to the feed car. Harrington lined up the switch so as to permit the car of coal to roll down, and, pursuant to orders, walked east along the street and was crossing over to open the gate to permit the "light" engine to move into the Chipman yard. While Harrington was doing this the light engine was moving around the curve, the trolly man intending to manipulate the switch near the station to permit the light engine to move across the street into the Chipman yard. Just before the engine had reached the position beyond the switch, the trollyman shouted to the motorman to stop as Harrington had been injured. Harrington was beginning to cross the street approaching the gate when a truck traveling on the highway struck him, inflicting injuries from which he died. The last acts Mr. Harrington did, related in any way to the movement of any of the cars, was to line up the switch to permit the engine to return to the house track lead, or to re-align the switch to permit the coal car to roll down to the car of feed. The car of feed, the car of coal, and the cars on the industry track were all intrastate cars.

It is not contended that the car of coal had not lost its interstate character, although when delivered to the American Fork house track, it came out of a train impressed with interstate commerce; nor is it contended that the cars the light engine was proceeding to move were impressed with interstate commerce. From the time the feed car had been taken out of the train and the train had been left on the main line, all operations of the crew had been directed to the movement of cars intrastate in character. If it were contended that the car of coal was still impressed with an interstate commerce character, we think the position would be untenable. Both the car of coal and the cars in the Chipman yard had no interstate character. Their interstate character had terminated before the contemplated movements from their positions on the sidings were initiated. Lehigh Valley Railroad Co. v. Barlow, 244 U.S. 183, 37 S.Ct....