Kuchenmeister v. Los Angeles & S.L.R. Co.

• Decision Date: 20 April 1918
• Docket Number: 3139
• Citation: 52 Utah 116,172 P. 725
• Parties: KUCHENMEISTER v. LOS ANGELES & S. L. R. CO
• Court: Utah Supreme Court

172 P. 725

52 Utah 116

KUCHENMEISTER v. LOS ANGELES & S. L. R. CO

No. 3139

Supreme Court of Utah

April 20, 1918

Appeal from District Court of Salt Lake County, Third District; Hon Wm. H. Bramel, Judge.

Action by Frank George Kuchenmeister, by his guardian ad litem against Los Angeles and Salt Lake Railroad Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Dana T Smith for appellant.

Marioneaux, Straup, Stott & Beck for respondent.

FRICK, C. J. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.

OPINION

FRICK, C. J.

The plaintiff, a minor past sixteen years of age, by his mother as guardian ad litem, brought this action to recover damages for the loss of his eye, which he alleged he lost by reason of injury sustained through the negligence of the defendant while he was employed in its roundhouse and machine shop at Caliente, Nev., on August 21, 1916. The action is based upon the Federal Employers' Liability Act. Plaintiff, in substance, alleged that at the time of the injury the defendant was engaged in interstate commerce as a common carrier; that on the 21st day of August, 1916, while the plaintiff was engaged in repairing certain parts of defendant's passenger engine No. 3425, which was then being used in interstate commerce, he was injured in his eye through the negligence of the defendant, stating the particular acts of negligence in detail; that by reason of such injury he lost his eye and is permanently injured.

The defendant admitted that it was engaged in both interstate and intrastate commerce, but denied the alleged acts of negligence. It set up contributory negligence on the part of the plaintiff, and averred that he had assumed the risk, and also set forth the affirmative defense that the plaintiff, by his own negligence in refusing to follow the directions of his physician, had greatly aggravated the injury, and that the removal of his eye was made necessary by reason of his own negligence, etc. The defendant denied, however, that the plaintiff, at the time of the injury, was engaged in interstate commerce.

The case was submitted to a jury, which found the controlling issues in favor of the plaintiff. The jury also found that at the time of the injury both the plaintiff and the defendant were engaged in interstate commerce. The jury also found that the plaintiff was guilty of contributory negligence, but did not find whether such negligence related to the doing of the work or to plaintiff's conduct in the treatment of his eye.

The allegations respecting the two grounds of contributory negligence were supported by substantial evidence on the part of the defendant.

The jury found that plaintiff had sustained damages to the extent of $ 7,500, but reduced that amount, on account of the contributory negligence of the plaintiff, in the sum of $ 2,500, and thus returned a verdict in his favor in the sum of $ 5,000 as the damages sustained by him. Judgment was entered on the verdict, and the defendant appeals.

Counsel for defendant has argued four assignments of error: (1) That the evidence "is wholly insufficient to support the finding that the plaintiff was engaged in interstate commerce at the time he received his injury," and that for that reason the court erred in submitting that question to the jury; (2) that plaintiff had assumed the risk; (3) errors to the admission and exclusion of evidence; and (4) errors in charging the jury.

Counsel for defendant earnestly insists that the first assignment should prevail. As before stated, defendant admitted that it was engaged in both interstate and intrastate commerce, but denied that the plaintiff at the time of the injury was engaged in interstate commerce.

It is not necessary to cite authorities upon the proposition that, in order to recover under the Federal Employers' Liability Act, both the employer and the employee must at the time of the injury be engaged in interstate commerce. Plaintiff's evidence tended to prove that plaintiff lived with his mother and sister at Caliente, Nev.; that defendant's engine No. 3425, which is the engine that was being repaired by plaintiff when he was injured, for a number of years immediately preceding the accident had been used exclusively in hauling interstate passenger trains between Caliente, Nev., and Milford, Utah; that plaintiff had seen it used for that purpose continuously for about three years immediately preceding the time the plaintiff was injured; that when the engine was not out on the road and in use it usually was in defendant's roundhouse at Caliente, Nev.; that a short time before the accident, perhaps a day or so, the engine was left at defendant's roundhouse and machine shop at Caliente, Nev., to be "overhauled"--that is, some repairs were required to be made upon it; that plaintiff had been in the employ of the defendant since June 23, 1916; that for about six weeks prior to the accident he had performed different kinds of work about the roundhouse and machine shop as he was directed from time to time by defendant's foreman who was in charge of the roundhouse and machine shop at Caliente; that on the 21st day of August, 1916, plaintiff was directed to assist another employee to do some repair work on said engine No. 3425; that in making such repairs it was necessary to grind down or reduce in size a certain pin which was a part of said engine, and plaintiff was directed to do that work on an emery wheel that was provided for that purpose by the defendant; that while plaintiff, prior to that time, had, on several occasions, used the emery wheel in question yet he was not aware of or did not realize the danger incident to the grinding of metals on emery wheels which would cause sparks and small particles to fly off from such wheels while grinding such metals; that he was not informed of such danger by defendant's foreman nor by any one else, and that no "goggles" or eye-protectors were furnished by the defendant with which to protect the eyes while grinding as aforesaid; that while he was in the act of grinding down the pin as directed, which was to be used on said engine, a small particle of steel or other hard substance which was thrown off from said emery wheel flew into and penetrated his eye, and caused the same to be sore and inflamed to such an extent that it had to be and was removed from the socket, by reason of which he became and is permanently injured; that he left the roundhouse of the defendant on the day of the accident, and that he did not know how long it took thereafter to complete the repairs on the engine aforesaid; that the next time he saw the engine it was standing dead on the side track at Milford, Utah and in about three weeks after the accident he saw the engine in use in interstate commerce--that is, it was hauling interstate passenger trains precisely the same as was the case for several years before the accident; that during all of the time mentioned, both before and after the accident, said engine was being operated by the same engineer. The defendant produced no evidence whatever respecting the use to which the defendant put the engine either before or after the accident. Defendant did, however, produce evidence on the other questions, and the witnesses for the defendant in some respects disagreed with plaintiff's statements, and in other respects denied his testimony and gave a different version of the accident and the care defendant had exercised in preventing the same. In view, however, that there is no contention that there was not substantial evidence upon every material issue except the one that the plaintiff at the time of the injury was engaged in interstate commerce, we shall refrain from stating the evidence in other particulars, except in connection with the point decided, if deemed necessary.

Defendant's counsel has cited a large number of cases which he contends sustain his contention that the plaintiff, at the time of the accident, was not engaged in interstate commerce. Among the cases cited upon that point are the following: Minneapolis & St. L. Ry. Co. v. Winters, 242 U.S. 353, 37 Sup. 122 Ct. 170, 61 L.Ed. 358; Pedersen v. Delaware Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153; Shanks v. Delaware, etc., Ry. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C, 797; Chicago, etc., Ry. Co. v. Harrington, 241 U.S. 177, 36 S.Ct. 517, 60 L.Ed. 941; Pierson v. New York S. & W. Ry. Co., 83 N.J.L. 661, 85 A. 233. It is not necessary to refer to the other cases cited by counsel, since all that he contends for is covered by those we have last above cited. We remark that while plaintiff's counsel concede that the Pierson Case, referred to, sustains defendant's contention, yet it must not be overlooked that that case emanates from a state court and not from a federal court.

If, therefore, there is a decision from a federal court which is decisive of the question here, and especially if the federal decision is one that is more recent than the one cited from a state court, it is our duty to follow the federal court rather than the state court, since the question involved is one upon which the federal courts have the ultimate right to speak.

In our judgment the decision in the case of Law v. Illinois Cent. Ry. Co., 208 F. 869, 126 C. C. A. 27, L. R. A. 1915C, 17, is decisive of the question that the plaintiff, in making the repairs on the engine in question, was engaged in interstate commerce.

In view of what is there said, it is also clear that the evidence in this case is sufficient to sustain the finding of the jury that the plaintiff was so engaged at the time of the accident. As before stated, the defendant produced no evidence upon that question, and hence, if there was any substantial...