Johnson v. Chicago & N. W. Ry. Co.

• Decision Date: 17 December 1942
• Docket Number: 8485.
• Citation: 7 N.W.2d 145,69 S.D. 111
• Parties: JOHNSON v. CHICAGO & N. W. RY. CO. et al.
• Court: South Dakota Supreme Court

7 N.W.2d 145

69 S.D. 111

JOHNSON v. CHICAGO & N. W. RY. CO. et al.

No. 8485.

Supreme Court of South Dakota

December 17, 1942

Churchill & Churchill, of Huron, for appellants.

B H. Schaphorst, of Brookings, for respondent.

ROBERTS Judge.

Plaintiff was injured while in the employ of defendant railroad company, a carrier engaged in both intrastate and interstate commerce. Proceedings were commenced before the industrial commissioner to recover compensation for the injury under the provisions of the Workmen's Compensation Law. The railroad company before the industrial commissioner and on appeal to the circuit court contended that plaintiff at the time of his injury was engaged in interstate commerce and that his right of recovery was governed by the Federal Employers' Liability Act and not by the Workmen's Compensation Law of this state.

At Sioux Valley Junction, three and one-half miles west of Brookings, South Dakota, the railroad company maintains for servicing locomotives engaged in both intrastate and interstate commerce a coal shed, water tank and pump house. Plaintiff had been employed at this junction for about 6 months, and his principal work was to shovel coal from railroad cars into coal chutes. He also oiled switches, kept the track clear of cinders and kept a record of the amount of coal taken by each locomotive. When the eastbound passenger train running from Pierre, South Dakota, to Chicago Illinois, arrived at about midnight on August 7, 1937, plaintiff as a part of his duties pulled down an apron or chute over which coal was emptied from one of the bins into the tender of the engine. After the departure of the train, plaintiff entered the pump house where he filed a slip indicating the number of tons of coal taken by the locomotive. The industrial commissioner found that plaintiff after leaving the pump house "noticed, through the dark of the night, men in a car of the employer's coal, which car was located on the coal storage track, and it appeared that the men were attempting to steal coal of his employer; and claimant shouted at them and took a step, when he was struck and knocked unconscious." The industrial commissioner concluded that the personal injury was caused by an accident arising out of and in the course of the employment of plaintiff by defendant railroad company and that plaintiff at the time of his injury was not engaged in interstate transportation or in work so closely related to it as to be practically a part of it.

If upon the facts disclosed by the record the case is one arising under and governed by the Federal Employers' Liability Act, the compensation law of this state did not apply. The federal act provides that every common carrier by railroad, while engaged in commerce between the states, territories or foreign countries shall be liable to damages "to any person suffering injury while he is employed by such carrier in such commerce." 45 U.S.C.A. § 51. The amendment of this section by Act of Congress of August 11, 1939, c. 685, § 1, 53 Stat. 1404, 45 U.S.C.A. § 51, defining the scope of the federal liability act, was enacted subsequent to the time of plaintiff's injury and has no application to the present proceeding. The United States Supreme Court has in numerous decisions considered the question as to what employees are engaged in interstate commerce or transportation within the terms of the act prior to its amendment. The character of employment whether intrastate or interstate depended on the particular service in which an employee was engaged at the time of his injury. The court in New York, N. H. & H. R. Co. v. Bezue, 284 U.S. 415, 52 S.Ct. 205, 206, 76 L.Ed. 370, 77 A.L.R. 1370, said:

"The state court held that the terminal facilities in which respondent worked constitute a part of the railroad's system necessary to the operation of the road and to the conduct of interstate commerce; that the fact that some work is there done on locomotives engaged in intrastate commerce does not deprive the establishment of its character as an essential instrumentality of interstate commerce; that the respondent was engaged in a 'plant service,' and worked indiscriminately upon engines engaged in interstate and intrastate commerce. The conclusion was that the nature and purpose of the plant warranted characterization of all respondent's work, of whatever nature, as in interstate commerce.

"The test thus applied is broader than our decisions justify. All work performed in railroad employment may, in a sense, be said to be necessary to the operation of the road. The business could not be conducted without repair shop employees, clerks, janitors, mechanics, and those who operate all manner of appliances not directly or intimately concerned with interstate transportation as such, or with facilities actually used therein. But we have held that the mere fact of employment does not bring such employees within the act."

The fundamental test for determining whether an employee was engaged in interstate transportation is stated as follows in Shanks v. Delaware, L. & W. R. Co., 239 U.S. 556, 36 S.Ct. 188, 189, 60 L.Ed. 436, L.R.A.1916C, 797: "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?" Plaintiff in that case was injured while engaged in taking down and putting into a new location in a machine shop an overhead counter shaft through which power was communicated to machinery used in repair work. The court applying the test for determining the character of the employment to the facts of the case concluded as follows:

"Coming to apply the test to the case in hand, it is plain that Shanks was not employed in interstate transportation, or in repairing or keeping in usable condition a roadbed, bridge engine, car, or other instrument then in use in such transportation. What he was doing was altering the location of a fixture in a machine shop. The connection between the fixture and interstate transportation was remote at best, for the only function of the fixture was to communicate power to machinery used in repairing parts of engines some of which were used in such transportation. This, we think, demonstrates that the work in which Shanks was engaged, like that of the coal miner in the Yurkonis case, was too remote from interstate transportation to be...