Hensley v. Chicago, St. Paul, Minneapolis & Omaha Railway Company
| Decision Date | 02 July 1929 |
| Docket Number | 26379 |
| Citation | 226 N.W. 421,118 Neb. 690 |
| Parties | STACY HENSLEY, APPELLEE, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dakota county: MARK J. RYAN JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
The general rule that the allegations of the pleadings and proof thereunder must agree will not be applied to reverse a judgment, where an issue is tried by both parties, without objection from either that such issue is not sufficiently pleaded. Under such conditions, the appellate court will consider the pleadings as sufficient to raise the particular issue.
The interpretation placed upon an act of Congress by the United States Supreme Court is controlling and binding upon the state courts.
The test of whether an employee of a railway company is subject to the federal employers' liability Act (45 USCA §§ 51-59) is: Was the employee, at the time of the injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?
In the repair of the tracks of a railway company, engaged in both intrastate and interstate traffic, numerous items of iron and steel were removed from the track as unfit for use. At intervals, this rejected material was gathered upon cars and hauled to Emerson, Nebraska, where it was unloaded upon a storage platform. When enough of such material to make a carload had been accumulated, it was reloaded into a car and shipped to another state. Plaintiff was injured while engaged in unloading some of this rejected material onto the platform from a car which had been standing in its then location for a period of four or five days. Held, that at the time he was not engaged in interstate commerce, within the meaning of the Federal Employers' Liability Act (45 USCA §§ 51-59).
A judgment for plaintiff in an action brought and tried under the Federal Employers' Liability Act (45 USCA §§ 51-59) cannot be sustained as a judgment in a common-law action for negligence, because the federal act eliminates certain defenses and modifies others that would be available to a defendant in a common-law action for negligence.
Appeal from District Court, Dakota County; Ryan, Judge.
Action under the Federal Employers' Liability Act by Stacy Hensley against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Wymer Dressler and Robert D. Neely, for appellant.
M. F. Harrington and George M. Harrington, contra.
This action was brought under the federal employers' liability act, to recover damages for personal injuries alleged to have been sustained by plaintiff while working for defendant as a section laborer. Plaintiff recovered a judgment for $ 14,000. Defendant appeals.
Of the many assignments of error, we shall consider only such as seem necessary to a proper determination of the cause.
From the record it appears that the defendant operates a system of railways, extending into and through a number of states. Plaintiff had been employed for a number of years by the defendant as a section laborer. His duties as such required him to work over and on a limited portion of defendant's right of way, in keeping its railway tracks in proper condition for both interstate and intrastate traffic. It appears that over the various branches of defendant's right of way repairs are made from time to time, and that when such repairs are made there are removed, as unfit for use, bolts, nuts, angle bars, base plates, parts of rails and other iron and steel material. This rejected material will hereinafter be referred to as "scrap." It was collected in small quantities at various places along the right of way of the several branches of defendant's railway. From time to time this scrap was gathered up and loaded onto cars and transported to Emerson, Nebraska, where it was unloaded upon a storage platform. When, from the various branch lines of railway, a sufficient quantity of scrap had been accumulated upon the platform to make approximately a carload, it was reloaded into a car and shipped to Hudson, Wisconsin, where defendant maintained shops and where the scrap was used in its business. Plaintiff in this case had nothing to do with the gathering of the scrap and loading it onto the cars for transportation to Emerson.
Some four or five days before the injury of which plaintiff complains, two cars, containing scrap which had been gathered up along the line, had been placed on a switch at Emerson adjacent to the storage platform. One of these cars was a flat-car and the other what is known as a gondola car. The flat-car was equipped with a collapsible or disappearing brake; that is, one in which the brake shaft operates in a sleeve or drum and, by a mechanical device, the brake shaft may be lowered through the sleeve or drum until the brake wheel is flush with the floor of the flat-car. The brake end of the flat-car was next to the gondola car.
On the morning of the day that plaintiff was injured, when he went to his place of employment, he, with the other members of the section crew, was ordered to assist a yard crew in unloading the scrap from the two cars. They had unloaded the major portion of the scrap from the flat-car when plaintiff stepped upon the brake wheel on the flat-car for the purpose of seeing the nature of the material in the gondola car. The brake shaft descended through the sleeve, and plaintiff was thrown between the two cars and received the injury of which he complains.
Defendant argues that there is no evidence which supports any act of alleged negligence. Plaintiff alleged that it was a common practice for the train employees to sit upon the brake wheel and ride thereon; that when plaintiff got upon the brake wheel he believed it to be strong and in a proper state of repair, but that, in fact, the brake was worn, loose and unsafe, which was unknown to plaintiff. He alleged that he got upon said brake wheel carefully and with due regard to and in the line of his duty as a section hand, as prescribed by defendant, for the purpose of ascertaining what tools would be needed for unloading the scrap from the gondola car. There is some evidence tending to show that the brake shaft was not perpendicular, that it was rusted and somewhat worn, but there is no evidence to show, nor any from which it might be properly inferred, that the brake was not in a proper condition to be used as a brake, or that it would not operate properly and safely for the purpose for which it was designed. However, plaintiff testified that he was ordered by his foreman to climb upon the brake wheel for the purpose of seeing into the gondola car, and that, pursuant to the order, he stepped upon the brake wheel.
It may be seriously doubted whether this evidence was properly admissible under the facts as pleaded, but the evidence was received without objection and without any motion to strike it from the record. Defendant, in turn, introduced evidence tending to contradict that given by plaintiff, and tending to prove that no such order was given and that plaintiff acted voluntarily and out of curiosity in climbing upon the brake. Under the circumstances, it is evident that, for the purposes of the trial, both parties treated the allegations of the petition as sufficient to admit evidence of the order, requiring plaintiff to climb upon the brake and into a place of danger that was unknown to him, and as a consequence he was injured.
Defendant invokes the rule that the allegations of the pleadings and proof thereunder must agree. This rule has often been announced in this court and is no doubt a sound one. Clarke v. Omaha & S.W. R. Co., 5 Neb. 314; Traver v. Shaefle, 33 Neb. 531, 50 N.W. 683; Ayers v. Wolcott, 66 Neb. 712, 92 N.W. 1036; Cockins v. Bank of Alma, 84 Neb. 624, 122 N.W. 16; Boyd v. Lincoln & N. W. R. Co., 89 Neb. 840, 132 N.W. 529. To this rule there are well-recognized exceptions, one of which is that if an issue is tried by both parties, without objection from either that the issue is not sufficiently pleaded, such objection will not be considered in the appellate court as a ground for reversal. Boyd v. Lincoln & N. W. R. Co., supra; Sjogren v. Clark, 106 Neb. 600, 184 N.W. 159; Auld v. Walker, 107 Neb. 672, 186 N.W. 1008.
Defendant contends that, since there were several obviously safe ways by which plaintiff could have seen into the gondola car, and since it was so plainly perilous for one to climb and stand upon the brake wheel when there was no necessity therefor, it is silly and unreasonable to believe that such an order should be given, and that testimony that it was so given is unworthy of credence. It may seem improbable that such an order would be given under the circumstances. It is a matter of common knowledge that unreasonable and absurd orders are sometimes given to workmen by their foremen. Whether such an order was given to plaintiff presented a question of fact for the jury to determine.
Defendant urges that the evidence shows plaintiff was not engaged in interstate commerce when he was injured, and that no recovery may be had in this action brought under and based upon the federal employers' liability act.
Since the legislation is federal, the interpretation placed upon it by the federal courts is controlling. The United States supreme court has many times held that the test of whether the employee was subject to the act is: Was the employee, at the time of the injury, engaged in interstate transportation, or in work so closely related to it...
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