Killes v. Great Northern Ry.

Decision Date22 November 1916
Docket Number13481.
Citation93 Wash. 416,161 P. 69
PartiesKILLES v. GREAT NORTHERN RY.
CourtWashington Supreme Court

Department 1. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by William Killes, under the federal Employers' Liability Act, against the Great Northern Railway. Judgment for plaintiff, and defendant appeals. Reversed.

F. V Brown and F. G. Dorety, both of Seattle, for appellant.

Carkeek & McDonald, of Seattle, for respondent.

MORRIS C.J.

Appeal from a judgment in favor of respondent upon verdict in his favor. The action was brought under the federal Employers' Liability Act, and the first question to be determined is whether or not respondent was at the time of his injury engaged in interstate commerce, and, therefore within the act. If he was not so engaged, then this action must fail.

Respondent was employed by appellant as a laborer. On the day in question he was directed to go down to appellant's freight shed, in which interstate commerce was handled, and paint or whitewash the ceiling of the shed. For this purpose a scaffold was to be erected upon which respondent and those engaged with him were to stand while applying the paint. Arriving at the shed respondent and two others, Wood and Casey, were directed by McGinity, the foreman in charge, to build the scaffold out of 4X4's laid across the main rafters of the shed about 13 feet above the floor. Upon these 4X4's 2X10 planks were to be laid, but not nailed, as it would be necessary to move the planks as the work progressed. After directing them how to build the scaffold, McGinity showed them a pile of lumber out in the yard from which the necessary timber for the scaffold was to be procured. Wood, Casey, and respondent thereupon proceeded to build the scaffold.

At the time of the accident respondent was upon the scaffold putting the planks in place, and Wood and Casey were below passing them up. Wood noticed that one of the 4X4's already in place was showing signs of breaking, and he and Casey went out to the pile of lumber and obtained another timber to place under the defective 4X4 as a brace. This was done, and while the brace was being held in place by the men below, Wood directed respondent to nail its upper end to the 4X4. Respondent proceeded to do so, kneeling upon a plank, when the 4X4 broke, and he fell to the floor. These facts will be sufficient to determine the question suggested.

Respondent, having resisted a removal of his case to the federal courts upon his right to sue in the state court under the federal statute, elected as between a right of action at common law and one under the federal act, and must abide by his election as fixing the law of the case. Baird v. Northern Pacific Ry. Co., 78 Wash. 67, 138 P. 325.

The freight shed itself as a storehouse and place for the handling of interstate commerce is conceded by appellant to be an instrumentality made use of in interstate commerce, but it does not follow that the building of a scaffold to be used in the painting of an interstate commerce freight shed bears such a relation to the movement of interstate freight, or is such an integral or necessary part thereof as to make such work fall within any definition or test of interstate commerce that has up to this time been announced. In Horton v. O. W. R. & N. Co., 72 Wash. 503, 130 P. 897, 45 L. R. A. (N. S.) 8, we reviewed the cases then reported to determine a practical test to apply to cases that would fall within the act, and reached the conclusion that the employment of the injured servant must be in connection with some instrumentality used in interstate commerce, and that the relation of the employment to interstate commerce must be such that an injury to the servant tended to hinder or delay the movement of trains engaged in such commerce. We sustained the action as within the act in that case upon the theory that an employé whose duty it was to attend a pumping plant furnishing necessary water to interstate trains was employed in furthering the movement of interstate traffic as much as the fireman who stoked the engine, the switchman moving oil for use in an interstate engine, or the servant who repaired the engine or cars; and that in going to his employment by the means supplied by the master he was under the protection of the act to the same extent as the fireman passing from one phase of his employment to another, in each of which cases the action has been sustained. Northern Pacific Ry. Co. v. Maerkl, 198 F. 1, 117 C. C. A. 237; Lamphere v. O. R. & N. Co., 196 F. 336, 116 C. C. A. 156, 47 L. R. A. (N. S.) 1; Montgomery v. Southern Pacific Ry. Co., 64 Or. 597, 131 P. 507, 47 L. R. A. (N. S.) 13.

We again passed upon the character of employment necessary to bring the servant under the federal act in Bolch v. C M. & St. P. Ry. Co., 90 Wash. 47, 155 P. 422, where a switchman was injured while engaged in the removal of cars from one repair track to another, and sustained the action because of testimony that one of the cars being moved was loaded with lumber destined from transportation to the state of South Dakota. We there reasoned that the interstate transportation to which this car was then devoted was not ended merely because the car had become temporarily disabled and had been placed upon the repair track awaiting repairs. No case, either state or federal, has gone farther in...

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7 cases
  • Kinzell v. Chicago, M. & St. P. Ry. Co.
    • United States
    • United States State Supreme Court of Idaho
    • March 26, 1918
    ......309;. Baltimore & O. Ry. Co. v. Branson, 242 U.S. 623, 37. S.Ct. 244, 61 L.Ed. 534; Killes v. Great Northern Ry. Co., 93 Wash. 416, 161 P. 69; Yazoo & M. V. R. Co. v. Houston, 114 Miss. ......
  • Delong v. Me. Cent. R. Co.
    • United States
    • Supreme Judicial Court of Maine (US)
    • May 24, 1939
    ...1916, 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A.1916C, 797, putting up fixtures in railroad machine shop; Killes v. Great Northern Ry, 1916, 93 Wash. 416, 161 P. 69, building scaffold for painting freight shed; Dunn v. Missouri Pac. Ry. Co., 1916, Mo.App, 190 S.W. 966, riveting stovep......
  • Morrison v. Chicago, M. & St. P. Ry. Co.
    • United States
    • United States State Supreme Court of Washington
    • October 1, 1918
    ......The brake blocks dragged. the wheels, and the car had great difficulty in making the. grade, which is fairly heavy at that point. Weller took it. ... and federal authority, is markedly pointed out in Killes. v. Great Northern Ry. Co., 93 Wash. 416, 161 P. 69. The. court said:. . . ......
  • Philadelphia, B. & W.R. Co. v. Smith
    • United States
    • Court of Appeals of Maryland
    • February 27, 1918
    ...... within the meaning of the federal statute. Among the cases he. relies on are McBain v. Northern Pac. Ry. Co. 52. Mont. 578, 160 P. 654; Killes v. Great Northern Ry. Co., 93 Wash. 416, 161 P. ......
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