Kinzell v. Chicago, M. & St. P. Ry. Co.
| Decision Date | 26 March 1918 |
| Parties | WILLIAM KINZELL, Respondent, v. CHICAGO, MILWAUKEE & St. PAUL RAILWAY COMPANY, a Corporation, Appellant |
| Court | Idaho Supreme Court |
MASTER AND SERVANT-INTERSTATE COMMERCE-FEDERAL EMPLOYERS' LIABILITY ACT.
1. A laborer employed in the construction of a fill beneath a wooden trestle, which when completed was intended to take the place of the trestle and to support the track of a railroad company engaged in the transportation of both intrastate and interstate commerce, is not engaged in interstate commerce so as to entitle him to maintain an action for personal injuries under the federal employers' liability act of April 22 1908, chap. 149, 35 Stats. at L. 65.
[As to employees entitled to protection under federal employers' liability act, see note in Ann.Cas. 1916E, 472]
APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.
Action for damages for personal injuries. Judgment for plaintiff. Reversed.
Judgment reversed, with instructions. Costs awarded to appellant.
Geo. W Korte and Robt. Elder, for Appellant.
The nature of the work must be the premise upon which the decision will rest whether plaintiff was performing a service in interstate commerce at the time he was hurt. If it is conceded that the making of the embankment as a substitute for the wooden trestle was new work, unrelated to the wooden trestle itself, it follows that the incidental work of widening the fill by means of the dozer machine or hand shovels is a part of that work and can have no relation to the up-keep or repair or condition of the main track over which interstate trains moved. (Howard v. Illinois Cent R. Co., 207. U.S. 463, 28 S.Ct. 141, 52 L.Ed. 297; Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146, Ann. Cas. 1914C, 153, 33 S.Ct. 648, 57 L.Ed. 1125, 3 N.C. C. A. 779; Shanks v. Delaware, L. & W. R. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C, 797; Chicago B. & Q. R. Co. v. Harrington, 241 U.S. 177, 36 S.Ct. 517, 60 L.Ed. 941, 11 N.C. C. A. 992; Illinois Cent. Ry. Co. v. Behrens, 233 U.S. 473, Ann. Cas. 1914C, 163, 34 S.Ct. 646, 58 L.Ed. 1051, 10 N.C. C. A. 153; Bravis v. Chicago, M. & St. P. R. Co., 217 F. 234, 133 C. C. A. 228; Jackson v. Board (Ill.), 117 N.E. 705; Erie R. R. Co. v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057.)
A temporary use of the tracks by construction material or by construction trains is not interstate commerce. (Illinois Cent. Ry. Co. v. Kelly, 167 Ky. 745, 181 S.W. 375; Zavitowsky v. Railway Co., 161 Wis. 461, 154 N.W. 974.)
The national supreme court has excluded from the act all employees except those actually connected with trains carrying interstate freight and those engaged in repair work "immediately productive of the maintenance or repair of intimately connected and essential, indispensable features of interstate commerce." (Louisville & N. R. Co. v. Carter, 195 Ala. 382, Ann. Cas. 1917A, 292, 70 So. 655; Castonguay v. Grand Trunk Ry. (Vt.), 100 A. 908; Delaware, L. & W. Ry. Co. v. Yurkonis, 238 U.S. 439, 35 S.Ct. 902, 59 L.Ed. 1397; Illinois Cent. Ry. Co. v. Cousins, 241 U.S. 641, 36 S.Ct. 446, 60 L.Ed. 1216; Minneapolis & St. Louis Ry. Co. v. Nash, 242 U.S. 619, 37 S.Ct. 239, 61 L.Ed. 531; Raymond v. Chicago, M. & St. P. Ry. Co., 243 U.S. 43, 37 S.Ct. 268, 61 L.Ed. 583; New York Cent. Ry. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, L. R. A. 1917D, 1; Minneapolis & St. L. Ry. Co. v. Winters, 242 U.S. 353, 37 S.Ct. 170, 61 L.Ed. 358; Lehigh Valley Ry. Co. v. Barlow, 244 U.S. 183, 37 S.Ct. 515, 61 L.Ed. 1070; Illinois Cent. Ry. Co. v. Peery, 242 U.S. 292, 37 S.Ct. 122, 61 L.Ed. 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. 888, 75 So. 690; McKee v. Ohio etc. Ry. Co., 78 W.Va. 131, 88 S.E. 616; Chicago & Erie Ry. Co. v. Steele, 183 Ind. 444, 108 N.E. 4; Dickinson v. Industrial Board, 280 Ill. 342, 117 N.E. 438; Barnett v. Coal & Coke Ry. Co. (W. Va.), 94 S.E. 150; Alexander v. Great Northern R. Co., 51 Mont. 565, 154 P. 914; Missouri, Kansas & Texas Ry. Co. v. Watson (Tex. Civ.), 195 S.W. 1177; Karras v. Chicago & N.W. R. Co., 165 Wis. 578, 162 N.W. 923; Sullivan v. Chicago, M. & St. P. R. Co., 163 Wis. 583, 158 N.W. 321; Pierson v. New York, S. & W. R. Co., 83 N.J.L. 661, 85 A. 233; Cincinnati, N. O. & T. P. R. Co. v. Hansford, 173 Ky. 126, 190 S.W. 690; Salmon v. Southern R. Co., 133 Tenn. 223, 180 S.W. 165; Schaeffer v. Illinois Cent. R. Co., 172 Ky. 337, 189 S.W. 237; Sullivan v. Chicago, M. & St. P. R. Co., 163 Wis. 583, 158 N.W. 321; Gallagher v. New York etc. Ry. Co., 180 A.D. 88, 167 N.Y.S. 480; Washington etc. Ry. Co. v. Owens (Md.), 101 A. 532; Central Ry. Co. v. Paslick, 239 F. 713, 152 C. C. A. 547; Kelly v. Pennsylvania Ry. Co., 238 F. 95, 151 C. C. A. 171.)
John P. Gray, W. D. Keeton, W. F. McNaughton and James A. Wayne, for Respondent.
The distinction between those cases in which the employee is at the time of his injury engaged in work the doing of which, or the failure to do which, might either hinder or expedite interstate commerce, and those cases where the instant work is not even remotely connected with such commerce is clearly drawn in Louisville & N. R. Co. v. Parker, 242 U.S. 13, 37 S.Ct. 4, 61 L.Ed. 119.
The Pedersen case is decisive in favor of the right of Kinzell to recover in the present case, as the work was not being done independently of the interstate commerce in which the defendant was engaged, but was so closely connected therewith as to be a part of it.
Kinzell was engaged not so much in preparing an agency for immediate use in interstate commerce as in maintaining that agency in usable condition for such commerce, while changes were being made. (Thompson v. Cincinnati, N. O. T. P. Ry. Co., 165 Ky. 256, Ann. Cas. 1917A, 1266, 176 S.W. 1006; Holmberg v. Lake Shore & M. S. R. Co., 188 Mich. 605, 155 N.W. 504; Lombardo v. Boston & M. R. R., 223 F. 427; Columbia & P. S. R. Co. v. Sauter, 223 F. 604, 139 C. C. A. 150.)
The work of ultimately substituting a fill in place of bridge 140 in this case required new construction work, but it was nevertheless a betterment and improvement of an instrumentality used by the defendant as an agency in carrying on its interstate commerce. (Ross v. Sheldon, 176 Iowa 618, 154 N.W. 499; Truesdell v. Chesapeake & O. R. Co., 159 Ky. 718, 169 S.W. 471; Saunders v. Southern R. Co., 167 N.C. 375, 83 S.E. 573; Grow v. Oregon Short Line R. Co., 44 Utah 160, Ann. Cas. 1915B, 481, 138 P. 398.)
William Kinzell brought this action to recover damages for personal injuries received by him while in the employ of a railway company engaged in both intrastate and interstate commerce. The injuries complained of were received in the state of Washington while appellant was engaged in constructing a dirt fill beneath a wooden trestle, known as bridge No. 140, near the town of Ewan, Wash., which fill was intended eventually to support the track. The material with which the fill was being constructed was obtained from new construction work entirely within the state of Washington, and no question of interstate commerce was thereby involved. The fill had progressed to the extent that it had in places reached the railroad ties and it had become necessary, after dumping the cars of dirt, to use what is known as a "bulldozer" to spread the dirt away from the track and thereby widen the fill. The bulldozer employed in this case was a flat-car with adjustable wings extending on either side from a point slightly over each rail and spreading out toward the back of the car.
The principal duty of respondent was to adjust these wings, and at times when they were waiting for another trainload of dirt, he and Hyram Lee, another employee upon the dozer, used shovels to clean out the rocks that lodged between the tracks. The dirt was being brought to the fill by means of two trains of about twenty-five "air-dump" cars each. When the train approached the bridge it would couple on to the dozer and proceed to the place where the dirt was to be dumped. After dumping the dirt the cars would be righted and the train would start back, pulling the dozer after it. The wings of the dozer would level down the dirt dumped, spreading it away from the track and thus widen the fill.
At the time of his injury, respondent was standing on the front of the dozer waiting for the dirt train to couple on. While he was waiting he was looking over the fill to determine where this trainload of dirt should be dumped. He contends that through negligence of the appellant, the train was going at so great a rate of speed when it coupled on to the dozer that it broke his hold on the cross-rods and crank-shaft and threw him violently to the ground between the wheels of the head car and injured him severely.
Before the trial of this case appellant moved to have the respondent make an election of remedies, and respondent elected to bring his case under the federal employers' liability act, 35 Stats. at L., chap. 149, p. 65, the material part of which is as follows:
"That every common carrier by railroad while engaging in commerce between any of the several states . . . . shall be liable...
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Kinzell v. Chicago, Milwaukee & St. Paul Railway Co.
...is now here on mandate from the supreme court of the United States, reversing the former decision of this court (Kinzell v. Chicago etc. R. Co., 31 Idaho 365, 171 P. 1136), and remanding the case for proceedings not inconsistent with the opinion of that court. (248 U.S. 552, 39 S.Ct. 6, 63 ......