Hurley v. Ill. Cent. R. Co.

• Decision Date: 19 May 1916
• Docket Number: No. 19688[98].,19688[98].
• Parties: HURLEY v. ILLINOIS CENT. R. CO.
• Court: Minnesota Supreme Court

133 Minn. 101

157 N.W. 1005

HURLEY

v.ILLINOIS CENT. R. CO.

No. 19688[98].

Supreme Court of Minnesota.

May 19, 1916.

Appeal from District Court, Ramsey County; Hugo O. Hanft, Judge.

Action by Willie Hurley, as administrator, against the Illinois Central Railroad Company. From an order denying new trial, plaintiff appeals. Reversed.

Syllabus by the Court

The test of the application of the Safety Appliance Act of March 2, 1893, 27 Stat. 531, c. 196 (U. S. Comp. St. 1913, §§ 8605-8612), as amended by the Act of March 2, 1903, 32 Stat. 943, c. 976 (U. S. Comp. St. 1913, §§ 8613-8615), requiring the use of automatic couplers on cars, to the use of a car not equipped with such couplers, is the use of such car on a railroad which is a highway of interstate commerce and not its actual use at the time in moving interstate traffic; and the car and not the train is the unit in determining the application of the act; and a switching operation moving interstate cars may be within its application.

When liability is based upon the federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665), it must be shown that the employer is a common carrier by railroad engaged in interstate commerce, and that the employé is employed by the carrier in such commerce at the time of his injury.

The Safety Appliance Act applies were a switching crew is making up cars in a railroad yard for immediate transportation out of the state; the tracks of the yard being used to make up and transfer interstate cars, and in general for interstate transportation; the conplers on the interstate cars moved at the time in the process of transfer being defective.

Where the evidence shows that the plaintiff's intestate, a switchman, was employed in switching cars in one of the defendant's yards, putting them into strings of cars for transportation into another state, the only transportation by railroad out of the state being such as was given by the switching crew, and the cars being destined for immediate interstate transportation, a finding that he was employed in interstate commerce is justified.

The evidence justified a finding that certain couplers were defective in that the knuckles would not open except by hand.

The evidence justified a finding that a coservant of the plaintiff's intestate who caused cars to be kicked against a string of cars about which he was working, knowing him to be about, and contrary to the custom, was negligent.

The jury, without indulging in conjecture, could find from the evidence the cause of the death of plaintiff's intestate; and they could find that it came from defective couplers, in which event the Safety Appliance Act applied, or from the negligence of a fellow servant, in which event the federal Employers' Liability Act applied.

The court erred in dismissing the case at the close of the plaintiff's testimony. Samuel A. Anderson and A. F. Storey, both of St. Paul, for appellant.

Butler, Mitchell & Hoke, of St. Paul, Chas. C. Le Forgee, of Decatur, Ill., and Blewett Lee, of Chicago, Ill., for respondent.

DIBELL, C.

Action to recover damages for the death of the plaintiff's intestate. At the close of the testimony the action was dismissed on the motion of the defendant. The plaintiff appeals from the order denying his motion for a new trial.

The plaintiff grounds his action upon the Safety Appliance Act and the federal Employers' Liability Act. He claims that certain automatic couplers were defective; and that a coservant of the deceased was negligent in running cars against those about which the deceased was working. The deceased was killed in a railroad yard of the defendant at Paducah, Ky.

[1] 1. Section 1 of the Safety Appliance Act of March 2, 1893, 27 St. 531, c. 196, provides that:

‘It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic * * * that has not a sufficient number of cars in it so equipped with power or train brakes,’ etc.

Section 2 provides that:

‘It shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.’

The act of March 2, 1903, 32 St. 943, provides that:

The former act, as amended, ‘shall apply in all cases, whether or not the couplers brought together are of the same kind, make, or type; and the provisions and requirements hereof and of said acts relating to train brakes, automatic couplers, grabirons, and the height of draw bars shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce * * * and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith. * * *’

There is a provision, not material here, requiring a certain percentage of the cars to be equipped with air brakes.

In Southern Ry. Co. v. U. S., 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72, an action to recover penalties for using cars not equipped with automatic couplers, it was held that the test of the application of the act is the use of the cars on a railroad which is a highway of interstate commerce and not their use in moving interstate traffic. There a penalty was exacted of the defendant carrier for using five cars with defective couplers, two of the cars at the time moving interstate traffic and the other three moving intrastate traffic. In considering the amendment the court said:

‘The true test of its application is the use of the vehicle on a railroad which is a highway of interstate commerce, and not its use in moving interstate traffic.’

And again it said that:

‘It must be held that the original act as enlarged by the amendatory one is intended to embrace all locomotives, cars and similar vehicles used on any railroad which is a highway of interstate commerce.’

In U. S. v. Erie R. Co., 237 U. S. 402, 35 Sup. Ct. 621, 59 L. Ed. 1019, there was involved the use of defective couplers and the operation of certain transfer trains in which cars of the requisite percentage were not controlled by air-brakes. The company had several yards some miles apart and strings of cars were run between one and the other as convenience required without being made into through trains. The court said:

‘It will be perceived that the air-brake provision deals with running a train, while the other requirements relate to hauling or using a car. In one a train is the unit and in the other a car. As the context shows, a train in the sense intended consists of an engine and cars which have been assembled and coupled together for a run or trip along the road. When a train is thus made up and is proceeding on its journey it is within the operation of the air-brake provision. But it is otherwise with the various movements in railroad yards whereby cars are assembled and coupled into outgoing trains and whereby incoming trains which have completed their run are broken up. These are not train movements but mere switching operations, and so are not within the air-brake provision. The other provisions calling for automatic couplers and grab irons are of broader application and embrace switching operations as well as train movements, for both involve a hauling or using of cars. * * * We are persuaded that the transfer trains * * * came within the purview of the air-brake provision.’

These cases indicate the scope of the application of the act.

2. The federal Employers' Liability Act of April 22, 1908, 35 St. 65, c. 149, provides that:

‘Every common carrier by railroad while engaged in commerce between any of the several states * * * 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 employ´ ploye, to his or her personal representative * * * 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. * * *’

When this statute is invoked as the basis of liability it must be shown that the employé is a common carrier by railroad engaged in interstate commerce and that the injury to the employé came while he was employed by the carrier in such commerce; and of course negligence must be proved. See Roberts' Injuries to Interstate Employés, § 26 et seq., and cases cited.

[3] 3. The plaintiff's intestate was a switching foreman in one of the defendant's yards at Paducah, Ky., the yard being known as the ‘Boat Yard.’ This yard extends in a general north and south direction. The Ohio river is at its north end. From the north and cars pass by a transfer boat into Illinois. In this yard are ten tracks, numbered progressively from 1 to 10 commencing at the east. At the time of the decedent's death a number of cars stood on track 10, the westerly one. It was the purpose of a switching crew to put in on track 10 two cars which were on track 6. They were the two northerly cars of a string of four. The switch engine went in from the south, coupled to the cars, then moved south from track 6 on to the lead, then went north onto track 10 and kicked the two cars against the string of standing cars. The deceased was at the time near the north end of this string of cars. The two...