Illinois Cent. R. Co. v. Indus. Comm'n

• Decision Date: 11 October 1932
• Docket Number: No. 21301.,21301.
• Citation: 182 N.E. 626,349 Ill. 451
• Parties: ILLINOIS CENT. R. CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

349 Ill. 451

182 N.E. 626

ILLINOIS CENT. R. CO.

v.INDUSTRIAL COMMISSION et al.

No. 21301.

Supreme Court of Illinois.

June 24, 1932.

Rehearing Denied Oct. 11, 1932.

Error to Superior Court, Cook County; Walter P. Steffen, Judge.

Proceedings under the Workmen's Compensation Act by Helen Cardella, claimant, against the Illinois Central Railroad Company, employer, for compensation for the death of Frank Cardella, deceased employee. To review a judgment of the superior court affirming an award of the Industrial Commission in favor of the claimant, the employer brings error.

Judgment reversed, and the award set aside.

ORR, J., dissenting.Vernon W. Foster and Fred H. Montgomery, both of Chicago (Edward C. Craig, of Chicago, of counsel), for plaintiff in error.

Bernard P. Barasa, of Chicago, for defendant in error.

STONE, J.

Defendant in error's intestate, Frank Cardella, was killed while in the employ of plaintiff in error. A claim for compensation was filed before the Industrial Commission and a hearing had which resulted in a recommendation by the arbitrator that compensation be awarded. The Industrial Commission on review, and hearing further evidence, confirmed the finding of the arbitrator. The superior court of Cook county sustained that finding. The cause is here on writ of error.

On and for some time prior to the date of the death of Cardella he was employed in the freight yards of plaintiff in error driving a tractor, to which trailers used in collecting refuse and débris picked up in plaintiff in error's freight yard were attached. This yard is used as a switching and terminal yard. The use of tracks in this yard is leased to various railroads, including the Chesapeake & Ohio Railroad Company, which latter company maintains in the yard an inbound and out-bound freight house. The track immediately west of this freight house was designated track No. 1. On it the Chesapeake & Ohio trains were assembled ready to be moved out of the city. Train No. 94 was scheduled to leave the city from this track late in the afternoon or early evening of each day. On December 18, 1929, at the time Cardella was injured, train No. 94, consisting of fifty merchandise cars, was made up and standing on track No. 1. The first stop after leaving Chicago was to be at Peru, Ind. Under the practice followed by plaintiff in error and its tenant roads, trains were made up under the orders of the tenant roads by switch engines owned by plaintiff in error. The operation of all trains departing from the yard was under the supervision and control of plaintiff in error, acting rhrough its trainmaster. Plaintiff in error's track supervisor was required to keep the yard and all tracks and switches in repair and working order. On the day of the injury and death of Cardella a high wind and heavy snowfall, amounting to a severe blizzard, obtained throughout the city of Chicago. Deceased drove the tractor until 3 o'clock on that day and was then directed to assist in cleaning the switches, frogs, and switch points of track No. 1 for train No. 94, as the switches could not be operated until the snow had been removed from them. Train No. 94 consisted of cars consigned to various points in Indiana and various other states east. While Cardella was crossing the yard to engage in work of cleaning the switches for train No. 94 he was struck and fatally injured by a truck owned by one Fred Bartuch, which was being driven through the yard. It does not appear that Bartuch had anything to do with the operation of the railroads or yard. Owing to the storm the train was unable to leave the yard until about 9:50 p. m., when it left in charge of the conductor of the Chesapeake & Ohio Railroad. Train No. 94 was an interstatetrain. In the yard in which Cardella was employed at the time he was killed, cars were loading for interstate and intrastate commerce.

Plaintiff in error contends here that the undisputed evidence shows that at the time Cardella was killed he was employed in interstate commerce or in work so closely related thereto as to be practically a part thereof. That is the only question in the case. The employment of Cardella at the time of his injury is controlling. Shanks v. Delaware, Lackawanna & Western Railroad Co., 239 U. S. 556, 36 S. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797;Chicago & Northwestern Railway Co. v. Bolle, 284 U. S. 74, 52 S. Ct. 59, 76 L. Ed. 173. Whether the employment was in interstate commerce depends upon whether Cardella was 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. Spencer v. Chicago & Northwestern Railway Co., 336 Ill. 560, 168 N. E. 686; Shanks v. Delaware, Lackawanna & Western Railroad Co., supra; New York Central & H. R. Railroad Co. v. Carr, 238 U. S. 260, 35 S. Ct. 780, 56 L. Ed. 1298. Employment which has for its...