Lamphere v. Oregon R. & Nav. Co.

• Decision Date: 06 May 1912
• Docket Number: 2,066.
• Citation: 196 F. 336
• Parties: LAMPHERE v. OREGON R. & NAV. CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

196 F. 336

LAMPHERE v. OREGON R. & NAV. CO. et al.

No. 2,066.

United States Court of Appeals, Ninth Circuit.

May 6, 1912

The writ of error in this case brings under review the judgment of the court below, sustaining a demurrer to the complaint of the plaintiff in error. The action was brought by the administrator of the estate of one Lamphere deceased, and the complaint alleged, in substance, that the said Lamphere was a locomotive fireman in the employment of the Oregon Railroad &amp Navigation Company; that his duties required him to respond at any time upon an order to do so; that on December 1, 1910 at 7:15 p.m., he was ordered by the said railroad company to proceed from his home in the town of Tekoa, Wash., to the depot in that town, to secure transportation there, and go on board a certain interstate train which was due at 7:45 p.m and to proceed to a certain other town in the state, and there to relieve an engine crew which had been continuously employed for more than 16 hours on an engine hauling an interstate train; that, after receiving said order, he hastened to the deport of the company in Tekoa, and had reached a crossing in the yards of the Railroad Company where the cars were cut, when, without warning, the cars were suddenly closed by reason of other cars being carelessly and negligently kicked against them, and that thereby he sustained injuries which resulted in his death. The complaint alleged that at the time of the happening of the injury and death of Lamphere, 'and immediately prior thereto, he was engaged in the performance of his duty in the employment of the said Oregon Railroad & Navigation Company in doing and performing exclusively the acts and things necessary and properly to be done in the performance of his said duties in obedience to the order of said company, and as a part of the necessities and requirements of said company in aid of and as a part of the operation of its cars, engines, and trains in carrying on its business of interstate commerce by railroad ' The complaint further alleged that Lamphere had been for a long time a locomotive fireman in the employment of said company, and that his duties as such fireman required him to respond at any time of the day or night when he should be called upon by said company to perform any of his said duties assigned to him from time to time. The complaint alleged, also, that the crossing used by said Lamphere was one which had been used by him and other employes of the company in the performance of their duties, and by the general public of Tekoa and the vicinity.

W. H. Plummer and Henry Jackson Darby, both of Spokane, Wash., for plaintiff in error.

W. W. Cotton, Arthur C. Spencer, and Ralph E. Moody, all of Portland, Or., for defendants in error.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge (after stating the facts as above).

It is conceded that the negligence which caused the death of the plaintiff in error's intestate was negligence of the latter's fellow servants, but it is contended that the complaint states a cause of action in that the allegations thereof bring the case within the provisions of Employer's Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. Supp. 1911, p. 1322).

There are decisions which hold that an employe of a railroad company while going to and from his work is not engaged in the service of his employer, and is not the fellow servant of other employes of the same master, but there are cases holding to the contrary, and, whatever may be the conflict of authority as to the ordinary case of an employe going to and from his work, there can be no question that he is in the service of his master, and is a fellow servant of his co-employes whenever he is doing that which under his contract of employment he is bound to do. Dishon v. Cincinnati, N.O. & T.P. Ry. Co. (C.C.) 126 F. 194; Olsen v. Andrews, 168 Mass. 261, 47 N.E. 90; Boldt v. N.Y.C.R. Co., 18 N.Y. 432; Ewald v. Chicago & N.W.R. Co., 70 Wis. 420, 36 N.W. 12, 591, 5 Am.St.Rep. 178. The deceased when he was killed was not only on his way to work for his employer, but he was proceeding under the direct and peremptory command of the Railroad Company to do a designated specific act in the service of the company, to wit, to move a train then engaged in interstate commerce. He was on the premises of the Railroad Company and in the discharge of his duty when he met his death, and the train which struck him and caused his death was engaged in interstate commerce, and belonged to the same railroad company. Must a fireman be actually in his place of duty on the locomotive of a train which is engaged in commerce between the states in order that he may be said to be employed in interstate commerce? If he is commanded to step down from his train and proceed across the track and take his place on another train engaged in interstate commerce and he is injured while on the way, will it be said that he was not employed in interstate commerce when he received the injury? The case supposed is substantially the case which is now before the court.

In Zikos v. Oregon R. & Navigation Co. (C.C.) 179 F. 893 it was held that one who was engaged in repairing the defendant's main track and driving spikes in the ties for the purpose of tightening the joints of the rails was engaged in interstate commerce, and that he could recover for injuries sustained through the negligence of a fellow servant who was also engaged in such commerce. In Colasurdo v. Central R.R. Co....