Horton v. Oregon-Washington R. & Nav. Co.

• Decision Date: 21 March 1913
• Citation: 72 Wash. 503,130 P. 897
• Court: Washington Supreme Court
• Parties: HORTON v. OREGON-WASHINGTON R. & NAVIGATION CO.

130 P. 897

72 Wash. 503

HORTON v. OREGON-WASHINGTON R. & NAVIGATION CO.

Supreme Court of Washington

March 21, 1913

Department 2. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

Action by M. P. Horton, administrator of Wilbur F. Horton, deceased against the Oregon-Washington Railroad & Navigation Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

W. H Plummer and Henry Jackson Darby, both of Spokane, for appellant.

Arthur C. Spencer, of Portland, Or., for respondent.

ELLIS J.

Action by the administrator of the estate of Wilbur F. Horton, deceased, for the benefit of the surviving widow and children of decedent, to recover damages for wrongful death under the federal employer's liability act.

The amended complaint alleged, in substance that the defendant was a corporation engaged in interstate commerce by railroad; that the decedent was employed by the defendant as a pumper at Onyx, Idaho, and operated at that place a pumping plant for the purpose of supplying the locomotives of the defendant with water; that decedent lived two or three miles from the pumping plant, and that it was necessary for him to go to the plant daily; that for this purpose defendant furnished him with a small handcar, called a 'speeder'; that on October 8, 1910, while going from his home to the pumping plant, and while operating the speeder on the track of the defendant, decedent was overtaken by an interstate passenger train; that decedent, upon becoming aware of the approach of the train, stopped the speeder and, for the purpose of avoiding a collision, consequent destruction of defendant's property, and probable loss of life, attempted to remove the speeder from the track; that while so doing he was struck by the train and instantly killed; that defendant failed to exercise reasonable care to avoid the collision after becoming aware of his presence; that 'the duties which said Horton performed and was required to perform, both in going to and coming from his home to said water pumping plant, were acts and things incident to and made necessary in the operation of said company's trains, cars, and locomotives in the carrying on of its business of interstate commerce by railroad and as an integral part thereof, and said Wilbur F. Horton was at the time of his death in the performance of said duties and in the employ of said company, and employed by it for the purpose of aiding and assisting it in the operation of its trains, cars, and locomotives, and in the carrying on of its business of interstate commerce by railroad.' It was admitted that the decedent was a fellow servant of the persons operating the train. While not so alleged, it seems to be conceded that the defendant was engaged in both interstate and intrastate commerce. The trial court sustained a demurrer to the complaint, upon the ground that the facts stated were not sufficient to invoke the benefit of the employer's liability act, and dismissed the action. The plaintiff appealed.

The first section of the employer's liability act of 1908, 35 U.S. Stats. at L. p. 65, c. 149, provides: 'That every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employé to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé; * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.'

The sole question presented for our consideration is this: Was the decedent employed by the defendant in interstate commerce at the time of his death, so as to enable his representative to invoke the benefit of this act? The earlier act of 1906 (Act July 11, 1906, c. 3073; 34 Stat. 232) was, in the Employers' Liability Cases, 207 U.S. 463, 28 S.Ct. 141, 52 L.Ed. 297, held unconstitutional as exceeding the power of Congress under the commerce clause of the Constitution, in that it imposed a liability, as against all common carriers engaged in interstate commerce, in favor of any of their employés, without restriction, and whether their employment did or did not pertain to interstate commerce. In those cases, however, all the justices concurred in recognizing the power of Congress to regulate the relation of master and servant by regulations confined to interstate commerce and services connected therewith. The act of 1908, above quoted, was passed to conform to that decision, and should therefore be construed as including within the term, 'any person suffering injury while he is employed by such carrier in such commerce,' every person who could be so included within the purview of the constitutional power. 'The act meant to include everybody whom Congress could include.' Colasurdo v. Central R. R. of N. J. (C. C.) 180 F. 832. That such was the purpose and intent of the second act seems to be assumed by the Supreme Court of the United States in an opinion holding the act constitutional. Second Employers' Liability Cases, 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L. R. A. (N. S.) 44. The inquiry is thus narrowed to the concrete question: Had Congress the constitutional power to enact a law regulating the relation between a common carrier engaged in interstate commerce and its servant, who is employed in pumping water used by its engines both for interstate and intrastate commerce? If Congress had this power, then we must assume that it intended to exercise it in passing the present act.

In determining the extent of the power of Congress and the consequent extent of the exercise of the power by this act, we are bound, whatever our personal views, by the decisions of the federal courts. We are not called upon to decide whether, if an injury be inflicted by a person or instrumentality employed by the defendant in intrastate, but not in interstate, commerce, the act could in any event be invoked, since the case is here on demurrer, and the complaint alleged that the train, and by necessary inference its crew, was employed in interstate commerce. It may be remarked in passing, however, as showing the sweepingly broad construction placed upon the act and the true criterion of the congressional power, that in the Second Employers' Liability Cases, supra, the Supreme Court expressly decided that the fact that the negligence which caused the injury was that of an employé engaged in intrastate commerce was immaterial; the true criterion being the effect of the injury upon interstate commerce, not the source of the injury. As to the character of service in which the injured servant must be engaged in order to be subject to the congressional power, so as to enable the servant to claim the benefit of the act, the Supreme Court, in the cases mentioned, does not particularize, but contents itself with the broad holding that 'the particulars in which those relations [of carrier, masters, and employés] are regulated must have a real or substantial connection with the interstate commerce in which the carriers and their employés are engaged.' In the cases (Second Employers' Liability Cases, supra) two of the injured employés were locomotive firemen apparently employed on interstate trains; while the third was a car repairer engaged in replacing a drawbar in one of the defendant's cars then in use in interstate commerce, and was killed by fellow servants pushing other cars against the one on which he was working. In each of these cases it was held that there was such a real or substantial relation to interstate commerce in the employment of the injured person as to come within the regulating power of Congress and within the protection of the act.

In Darr v. Baltimore & O. R. Co. (D. C.) 197 F. 665, the plaintiff's regular work was the making of what is called 'running repairs.' An engine and tender used in hauling interstate trains had reached the end of their run, and were placed upon a fire track to await the time for starting upon the return trip. The plaintiff, while replacing a bolt lost from a brake shoe of the tender, was injured through the negligence of a fellow servant. It was held that he was employed by the carrier in interstate commerce and entitled to the benefit of the act.

In the foregoing instances, so far as the opinions show, the employment of the injured servant related solely to instrumentalities used in interstate commerce. There are, however, numerous cases in which it is held that, where the service of the injured servant contributed indiscriminately to both the interstate and the intrastate business of the carrier-master, the injured servant is entitled to the benefit of the act.

In Zikos v. Oregon R. & N. Co. (C. C.) 179 F. 893, the plaintiff, a section hand, was injured while employed in repairing the main line of the defendant's railroad used both in interstate and intrastate commerce. The argument seems to have been advanced that, because...