Kidder v. Marysville & A. Ry. Co., 22640.
| Decision Date | 26 January 1931 |
| Docket Number | 22640. |
| Court | Washington Supreme Court |
| Parties | KIDDER v. MARYSVILLE & A. RY. CO. et al. |
Department 2.
Appeal from Superior Court, Snohomish County; Adam Beeler, Judge.
Action by Matilda Kidder, as administratrix of the estate of John F Kidder, deceased, against the Marysville & Arlington Railway Company and others. From a judgment in favor of plaintiff defendants appeal.
Reversed with directions.
J. A. Coleman and Robert Mulvihill, both of Everett, for appellants.
Joseph H. Smith and Louis A. Merrick, both of Everett, for respondent.
Defendants are corporations and have for several years operated a logging railroad in Snohomish county for the purpose of hauling logs from their camp about eight miles northeast of the city of Arlington to tidewater near Marysville. The late John F. Kidder was for approximately fifteen years in defendants' employ as brakeman, working upon this logging railroad. March 24, 1927, Mr. Kidder, while riding on a logging train in the course of his employment, was killed in an accident resulting from the falling down of a brake beam on one of the logging trucks, which, catching in the frog of a switch, threw several of the trucks from the track; Mr. Kidder having been caught beneath one of them. This action was instituted by Matilda Kidder, his widow, as administratrix of his estate, for the purpose of recovering damages occasioned by her husband's death. From a judgment in favor of plaintiff, defendants appeal.
Several questions are presented by appellants' assignments of error, but we find it necessary to discuss only one of them. Respondent, in her amended complaint upon which the action was tried, alleged that appellants were operating the railway above mentioned and were common carriers 'engaged in the transaction of interstate commerce.' Appellants admitted their corporate identity, that they were operating the logging railroad, and that Mr. Kidder had been in their employ, but denied that they were common carriers or engaged in any business which constituted interestate commerce. In addition to their denials, appellants pleaded several affirmative defenses, only one of which need be mentioned.
Appellants pleaded affirmatively that they were operating a logging railroad within Snohomish county; that the railroad had been classified by the department of labor and industries of the state of Washington as being an intrastate railway solely not engaged in any particular in interstate commerce; and that appellants had been required by the department of labor and industries of the state of Washington to pay premiums upon their pay roll, which premiums appellants had paid. The affirmative allegations contained in appellants' answer above referred to were denied by respondent upon information and belief. It is not disputed by respondent that appellants did in fact pay upon demand by the department of labor and industries of the state of Washington premiums upon their pay roll. Respondent contends that appellants were engaged in interstate commerce, and that therefore she may maintain this action and is not required to accept the compensation provided by the statute of this state known as the Workmen's Compensation Act (Laws 1911, p. 345, as amended). Appellants deny that they were engaged in interstate commerce, and contend that respondent cannot maintain this action, but under the facts and the law is relegated to her claim for compensation under the state statute.
We are satisfied that in so far as appellants used their railroad for transporting their own logs to tidewater they were not engaged in interstate commerce, but were doing purely an intrastate business. McCluskey, Administrator, v. Marysville & Northern Ry. Co., 243 U.S. 36, 37 S.Ct. 374, 61 L.Ed. 578; State ex rel. C., M. St. P. & P. Ry. Co. v. Department of Public Works, 149 Wash. 129, 270 P. 300. It appears, however, from the record that appellants from time to time, in connection with the operation of their railway as used in the prosecution of their own business, hauled for two mill companies, whose plants adjoined their railroad right of way, cars loaded with lumber and other mill products, most of which cars were intended for interstate shipment. Appellants hauled these cars at a flat rate of $16 per car to a derail or switch which was connected with their own track upon which they deposited the cars which were subsequently picked up by a railroad doing admittedly an interstate business. No bills of lading were issued by appellants for these cars, which were hauled over appellants' railway on oral order without any regard to their ultimate destination, whether intrastate or interstate.
At appropriate stages in the proceedings, appellants moved the court for judgment in their favor upon the ground that the evidence failed to show that respondent was entitled to maintain this action under the federal law. These motions were denied by the trial court, which submitted to the jury the question of whether or not appellants were in fact engaged in interstate commerce. If the testimony in face and in law showed any conflict upon this question, and if the question were a proper one to be considered by the jury, then it may be assumed that this question was properly submitted. As we view the case, however, the issue was in fact narrower; the question to be determined being whether or not at the time of the accident Mr. Kidder was himself engaged in interestate commerce. If he was, then respondent can maintain this action; if he was not, then appellants' motion for judgment in their favor as matter of law should have been granted. Under the authorities, it was not enough for respondent to show that appellants did, from time to time, haul some cars which might be classified as being used in interstate traffic. The burden rested upon respondent to show that at the time of the accident her intestate was engaged in interstate commerce. It was not sufficient for respondent to show that appellants in carrying on their transportation business engaged occasionally in interstate commerce, and under the record, as we view it, whether or not they were from time to time so engaged is immaterial. Respondent failed to show that at the time of the accident there was any car attached to the train or forming a part thereof other than logging trucks owned by appellants, and used by them in connection with their logging operations. Indeed, it clearly appears from the record that the train was solely made up of appellants' engine, caboose, and logging trucks. The train was proceeding from tidewater, after unloading logs, back towards the logging camp, and contained no car, loaded or empty, belonging to any person other than appellants, or which was intended at that time to be used by any other person.
The Supreme Court of the United States, in the case of Illinois Central Ry. Co. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163, held that a fireman, who came to his death while at his post of duty on his engine, which was engaged in switching cars from one point to another within the city of New Orleans, was not at the time of his death engaged in interstate commerce, and that his personal representative had no right of action against the railroad company for alleged negligence which resulted in the collision occasioning the death. The railroad for whom the fireman had been working was engaged in both intrastate and interstate commerce, but it appeared that at the time of the accident the fireman was engaged in moving several cars, all loaded with intrastate freight, from one part of the city to another. The court quoted from its own decision in the case of Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146, 33 S.Ct. 648, 649, 57 L.Ed. 1125, the following:
It was held that the mere fact that it was anticipated that the fireman would, upon the completion of the task upon which he was engaged at the time of his injury, enter upon other work, to wit, switching cars which were at the time being used in interstate commerce, was immaterial, and that as at the time of the accident the deceased was engaged in intrastate commerce only, no liability existed against the employer under the federal law.
In the case of 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, it was held that an employee of a railroad company which was engaged in both intrastate and interstate transportation, who was...
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Kidder v. Marysville & A. Ry. Co.
...Adam Beeler, Judge. Opinion in department approved, and judgment appealed from reversed, with instructions. For departmental opinion, see 295 P. 162. J. A. Coleman and Robert Mulvihill, both Everett, for appellants. Joseph H. Smith and Louis A. Merrick, both of Everett, for respondent. BEAL......