Kinzell v. Chicago St Ry Co
| Citation | 39 S.Ct. 412,250 U.S. 130,63 L.Ed. 893 |
| Decision Date | 19 May 1919 |
| Docket Number | No. 485,485 |
| Parties | KINZELL v. CHICAGO, M. & ST. P. RY. CO |
| Court | United States Supreme Court |
Messrs. James A. Wayne, of Wallace, Idaho, and John P. Gray, of Coeur D'Alene, Idaho, for petitioner.
Mr. George W. Korte, of Seattle, Wash., for respondent.
This case comes into this court on writ of certiorari to the Supreme Court of the state of Idaho and all of the facts essential to its decision are admitted or are not controverted, and are as follows:
When the accident complained of in the case occurred, the railway company, respondent, was engaged in filling with earth a wooden trestle-work bridge, 1,200 feet in length, by which its track was carried across a dry gulch or coulee, the purpose being to continue the track upon the solid embankment when it should be completed.
It was admitted that the railway company was engaged in interstate commerce, and that during the progress of the filling the bridge was used for interstate trains. Pursuant to an order of court, the petitioner, an employe of the respondent, elected to rely on the federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. §§ 8657-8665) for his right to recover.
Several weeks prior to the accident to the petitioner Kinzell, the work of filling the bridge had progressed to such a stage that when earth was dumped from cars it would be heaped up beside the track higher than the tops of the ties and rails so that it became necessary to spread it by pushing it away from the track toward the edge of the fill, in order to prevent its falling back upon the rails and to widen the embankment. To thus spread the earth an appliance called in the record a 'dozer,' and sometimes a 'bull dozer,' was used. It consisted substantially of a flat car body with adjustable wings or scrapers, so designed as to remove any earth which might fall upon the rails and also to press or push that heaped up at the side of the track out to the edge of the embankment.
When a trainload of earth would arrive at the bridge the practice was to couple the 'dozer' to the forward end of the cars and then they and the 'dozer' would be pushed to the place at which it was desired to unload the earth. After the cars were dumped the pulling of the 'dozer' back with them would scrape the earth from the tops of the rails and would push it away from the track, thus contributing to keep the track clear and to widen the embankment.
For several weeks prior to the accident complained of, Kinzell, with an assistant, had been in charge of this 'dozer,' using it as described, and in addition to this they were required to remove, with shovels, earth or stones which fell upon the track, so, the superintendent of the railway testified, as to make it safe for the operation of trains. The rails and ties had not been transferred to the embankment, but were still sustained by the bridge substructure when the accident occurred.
Kinzell was injured by what he claimed was negligence of the company in the manner of coupling a train of cars to the 'dozer' as an immediate preliminary to such an unloading and cleaning movement as we have described.
Much is made in argument of the contention that the fill in progress was not the repairing of, nor the furnishing of support to, the bridge, which, by the testimony of the engineer in charge of bridges, had about a year 'of life' remaining when the accident occurred. For this reason it is contended that the principles of the Pedersen decision, 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, do not apply. But in the view we take of the case this is not important.
With these facts before it, the Supreme Court of Idaho, in its judgment which we are reviewing, reversed the judgment of the lower court in Kinzell's favor, solely upon the ground that he was not employed in interstate commerce at the time he was injured, and gave this as the reason for its conclusion:
'We are of the opinion that constructing a fill to take the place of a trestle which is being used in interstate commerce is new construction, and that the fill does not become a part of the railroad until it is completed and the track is placed...
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