Jordan v. Baltimore & O. R. Co.

• Decision Date: 19 December 1950
• Docket Number: No. 10204,10204
• Citation: 135 W.Va. 183,62 S.E.2d 806
• Court: West Virginia Supreme Court
• Parties: JORDAN, v. BALTIMORE & OHIO R. CO.

Page 806

62 S.E.2d 806

135 W.Va. 183

JORDAN, v. BALTIMORE & OHIO R. CO.

No. 10204.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 1950.

Decided Dec. 19, 1950.

Syllabus by the Court.

1. An employee of an interstate common carrier, in constructing a sewer for use as a necessary facility of a roundhouse used by such carrier, in the operation and maintenance of its railroad system, for housing, servicing and repairing engines operated in interstate commerce, to replace another sewer which was used for that purpose, is engaged in the furtherance of, and directly or closely and substantially affects, interstate commerce, and is employed in such commerce within the meaning of the Federal Employers' Liability Act, April 22, 1908, Chapter 149, 35 Stat. 65, as amended August 11, 1939, Chapter 685, 53 Stat. 1404, 45 U.S.C.A., Sections 51 to 60.

2. The provisions of the Federal Employers' Liability Act, as amended, impose liability upon a common carrier engaged in interstate commerce and create a cause of action in favor of an employee who, while employed in such commerce, is injured by the negligence of such carrier by reason of any defect or insufficiency in its instrumentalities, appliances, machinery or other equipment; and the provisions of such statute supersede the laws of a state as to all matters, and exclusively govern all actions, within its scope and render state laws inoperative and ineffective as to all such matters and actions.

3. The provision of the Federal Employers' Liability Act, as amended, prescribing a period of three years after a cause of action accrues within which to commence an action covered by that statute relates to the right which it creates and the remedy which it provides; and an action based upon or within the scope of the statute, which is not commenced within the three year period of limitation, can not be maintained.

Charles A. Duffield, Jr., Sutton, Charles W. Louchery, W. G. Stathers, Stewart McReynolds, and Robert B. Stotler, all of Clarksburg, for plaintiff in error.

G. C. Belknap, Sutton, Wysong & Wysong, Webster Springs, for defendant in error.

HAYMOND, Judge.

The plaintiff, A. M. Jordan, instituted this action of trespass on the case in the Circuit Court of Braxton County, on June 5, 1948, to recover damages from the defendant, Baltimore and Ohio Railroad Company, a corporation, for personal injuries alleged to have been sustained by him, as its employee, caused by its negligence while working as a member of a railroad construction and repair crew in Charleston, Kanawha County, on December 19, 1940. To a final judgment entered April 4, 1949, for the plaintiff for $13,500, based upon a verdict of the jury, the defendant prosecutes this writ of error.

Before the institution of the present action, the plaintiff on January 29, 1944, more than three years after the date of his injury, instituted in the same trial court another action, based upon a federal statute commonly referred to as the Federal Employers' Liability Act, approved April 22, 1908, C. 149, 35 Stat. 65, as amended by Act approved August 11, 1939, C. 685, 53 Stat. 1404, 45 U.S.C.A. §§ 51 to 60, to recover damages from the defendant for the same injury. In that action the defendant filed, among others, two pleas to the amended and supplemental declaration, which pleas alleged, in substance, that the action was barred under the federal act because not commenced within three years from the day the cause of action accrued, as required by Section 6 of that statute, as amended. To each of the pleas the plaintiff filed a special replication. The court sustained the demurrer of the defendant to each replication and certified its ruling to this Court which, by order entered August 3, 1946, refused to docket the case for hearing. No further proceedings were taken in that action and it was pending in the Circuit Court of Braxton County when this action was tried in that court in November, 1948.

The declaration in the present action bases the right of the plaintiff to recover for injuries to his person upon the law of this State instead of the Federal Employers' Liability Act. With respect to matters regarded as material in the decision of this case, the declaration is substantially similar to the amended and supplemental declaration filed in the first action. That declaration alleged that the defendant, at the time the plaintiff was injured, was a common carrier and as such was the owner and the operator of an interstate railroad system, and that both the defendant and the plaintiff, as its employee, were then engaged in interstate commerce. The declaration in the present action, though alleging that the plaintiff when injured was an employee of the defendant and was performing the same acts and duties at the same place mentioned and described in the amended and supplemental declaration in the first action, does not expressly allege that the plaintiff, as such employee, at the time of his injury, was employed in interstate commerce.

The plaintiff when injured on December 19, 1940, was, and for many years previously had been, an employee of the defendant. At the time of the trial he had worked for the defendant for approximately thirty seven years. He is a carpenter, and during his employment by the defendant his work included repair of bridges, water tanks, coal houses, water stops, pump stations, roundhouses, laying tile, masonry and other labor connected with the maintenance of a railroad system. At the time of the trial, which began on November 22, 1948, he was sixty four years of age. The defendant is and long has been a common carrier, engaged in the ownership, operation and maintenance of an interstate railroad system in this State and in other states, including a roundhouse located in Charleston, Kanawha County, which is used to house, service and repair locomotives to run and operate trains in both interstate and intrastate commerce. In servicing its engines and those of the New York Central Railroad Company and the Virginian Railroad Company, also interstate common carriers, the engines are placed over pits into which ashes, water and grease from the locomotives are deposited. Prior to the time the plaintiff was injured the water which accumulated in these pits was drained from them into an eight inch sewer which was connected with a main sewer of the City of Charleston, located beneath Court Street, a public street of the city at a point approximately one hundred and forty feet from the roundhouse. The eight inch sewer appears to have been inadequate for its purpose and because of stoppage in it water accumulated in and flooded the pits at the roundhouse. Because of this condition the defendant undertook the construction of a new twelve inch sewer between Court Street and the roundhouse to replace the old line and assigned a crew of its employees, including the plaintiff, to that work. Before the plaintiff was injured the ditch for the new line had been dug from Court Street to a point some distance from the roundhouse and part of the line had been placed in the ditch. On the morning of December 19, 1940, the plaintiff and another employee were at work in the ditch laying tile for the new line. While they were so engaged dirt from an unsupported side of the ditch, which was from six feet to nine feet and six inches in depth and from four feet to six feet in width at the top, and from twenty two inches to thirty inches in width at the bottom, suddenly slipped or 'caved in', covered the plaintiff and his fellow employee, and caused the injuries of which the plaintiff complains.

The plaintiff and two witnesses produced in his behalf testified that within a few hours before the accident, in which the plaintiff was injured, the plaintiff told the foreman of the defendant in charge of the work that the ditch was unsafe and should be bratticed with timber available for that purpose. This testimony was denied by the foreman, who testified that he had seen the ditch earlier on the day of the accident, that he thought it was safe, and that he was present when the slide occurred and assisted in extricating the plaintiff and his companion, which was done within three to five minutes.

After the accident the plaintiff was taken to a nearby hospital where he was examined by a doctor who told him that his injuries consisted of a broken rib and a bad bruise of the ligaments of his shoulder and the upper part of his forearm. The doctor instructed the plaintiff to 'come back day after tomorrow' which he did, but what directions or treatments were then given by that doctor are not shown by the record. The plaintiff was subsequently examined from time to time by doctors employed by him and also by doctors to whom he was sent by agents of the company. The plaintiff admits that he returned to his employment with the defendant, but in a different kind of work, and that he has lost no time since he was injured except that lost while he was on relief or ill, but the amount of time lost due to illness is not clearly established. At the time of the trial he testified that since his injury he has suffered, and still suffers, pain in his right shoulder and right arm, that he does not have full normal use of his arm, and that his injury is permanent. At the trial three physicians were produced as witnesses for the plaintiff. They had made individual examinations of the defendant in November, 1947, and November, 1948, respectively, and each testified that when he examined the plaintiff he complained of pain in his right arm and right shoulder, that the muscles of his right shoulder were affected with atrophy, that there was substantial limitation of motion in his right arm and right shoulder, and that this condition was permanent.

In view of the conclusion reached upon the decisive issues in this case, it is not deemed necessary to mention in detail additional facts appearing in the voluminous record which...