Lavigne v. Chicago, M., St. P.&P.R. Co.

• Decision Date: 30 November 1936
• Docket Number: Gen. No. 38812.
• Parties: LAVIGNE v. CHICAGO, M., ST. P. & P. R. CO.
• Court: United States Appellate Court of Illinois

287 Ill.App. 253

4 N.E.2d 785

LAVIGNE

v.CHICAGO, M., ST. P. & P. R. CO.

Gen. No. 38812.

Appellate Court of Illinois, First District, First Division.

Nov. 12, 1936.

Rehearing Denied Nov. 30, 1936.

Appeal from Superior Court, Cook County; James F. Fardy, Judge.

Action by Arthur Levigne against the Chicago, Milwaukee, St. Paul & Pacific Railroad Company. From a judgment for plaintiff, defendant appeals.

Reversed.

O'CONNOR, J., dissenting in part. M. L. Bluhm and Bruce S. Parkhill, both of Chicago (C. S. Jefferson, of Chicago, of counsel), for appellant.

Ryan, Sinnott & Miller, of Chicago, for appellee.

McSURELY, Justice.

Plaintiff, while employed as a switchman by defendant in its Galewood yard in Chicago, took hold of a grabiron on the front end of a freight car; the iron pulled out, throwing him to the ground, injuring him; he brought suit and had a verdict for $45,000; defendant appeals from the judgment for this amount.

The complaint was in two counts. The first alleged that plaintiff, employed by defendant, was engaged in switching certain cars in interstate commerce and transportation in a switchyard of defendant; that defendant was subject to the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and the Federal Safety Appliance Acts, 45 U.S.C.A. § 1 et seq.; that in violation of the appliance acts a grabiron became defective and loose, and by reason thereof plaintiff was thrown from the car and injured.

Defendant answered, denying that plaintiff and defendant were engaged in interstate commerce at the time of the accident.

The provisions of the Federal Employers' Liability Act in so far as they are pertinent are as follows: “Every common carrier by railroad while engaging in commerce between any of the several States or Territories * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce.” Section 1 (45 U.S.C.A. § 51). “Engaged in interstate commerce” has been held to mean, “engaged in interstate transportation, or in work so closely related to it as to be practically a part of it.” Shanks v. Delaware L. & W. Railroad Co., 239 U.S. 556, 36 S.Ct. 188, 189, 60 L.Ed. 436, L.R.A.1916C, 797. It is a prerequisite to liability of a railroad under the liability act that both it and the employee be actually engaged in interstate commerce at the time of the injury. Gidley v. Chicago Short Line Ry. Co., 346 Ill. 122, 178 N.E. 399.

Were plaintiff and defendant at the time of the accident engaged in interstate commerce as claimed by plaintiff, or in intrastate commerce as claimed by defendant?

The accident occurred shortly after 5 o'clock p. m. on August 3, 1932; before that time a string of about 27 cars had been brought by another crew from a “wash” track and 18 from another “wash” track to what is called the “staker lead” track; the cars were all empties and had been washed and cleaned on the tracks from which they were brought. Plaintiff was a member of Conductor McCloskey's switch crew and went to work at 5 o'clock p. m.; his work was to pull out the pin from the cars as they were switched from the lead track onto the switch tracks. The tracks run east and west and the engine was attached to the west end of the 45 cars on the lead track. The conductor, McCloskey, chalked them for the respective switch tracks on which they were to be placed; for the reason that so large a number of cars could not be conveniently handled by the switch engine, the string of cars was cut by McCloskey, leaving about 30 cars attached to the engine and the remaining 15 cars standing on the lead track; the crew then proceeded to switch the 30 cars on their respective tracks as indicated by the chalk marks on the cars; none of these 30 cars was then engaged in interstate commerce.

Plaintiff claims that 6 or more of the 15 cars standing on the lead track were engaged in interstate commerce; we shall later discuss this.

The crew first undertook to “kick” the last 3 cars of the 30 onto switch track 15; the engine pulling the 30 cars moved up the lead in a westerly direction, plaintiff riding on the third car from the rear; the engine then backed eastward onto track 15 for the purpose of kicking the easterly three cars onto this track. Plaintiff testified that he was hanging onto the grabiron on the front end of the fourth car with one hand, trying to work the pin lifter on the other car with the other hand, when the grabiron pulled out and he was thrown to the ground, receiving the injuries in question.

There is no conflict in the evidence as to plaintiff's work or duties when he was injured, and the facts established by the undisputed evidence present what was characterized in Efaw v. Industrial Commission, 200 Wis. 137, 227 N.W. 249, as “a troublesome question of law.”

It is not claimed that either the car from which the grabiron was pulled loose or any of the other cars among the 30 were engaged in interstate commerce at the time of the injury. If the duties of the crew were confined to the handling of these cars, there could be no doubt but that defendant and plaintiff were not engaged in interstate commerce at the time.

But plaintiff argues that after the crew had finished switching the 30 cars it would then proceed to the 15 cars standing on the lead and switch them to their respective tracks; that 6 of these cars were “carded” for Linwood, Iowa; that the work of the crew to which plaintiff belonged was the distribution of the entire 45 cars as a unit, including the distribution of the cars carded for a destination outside the state.

Defendant cites a large number of cases stressing the point that it is the nature of the employment at the time of the injury that determines the character of the transportation as interstate or otherwise. In Illinois Central R. Co. v. Peery, 242 U.S. 292, 37 S.Ct. 122, 61 L.Ed. 309, a conductor on a train engaged in interstate traffic returned on a train in which there were no interstate cars. It was held that he was not at the time of the injury engaged in interstate traffic. In Erie R. Co. v. Welsh, 242 U.S. 303, 37 S.Ct. 116, 118, 61 L.Ed. 319, it is said: “The true test is the nature of the work being done at the time of the injury, and the mere expectation that plaintiff would presently be called upon to perform a task in interstate commerce is not sufficient to bring the case within the act. Illinois Central R. R. Co. v. Behrens, 233 U.S. 473-478, 34 S.Ct. 646, 58 L.Ed. 1051, 1055, Ann.Cas.1914C, 163.” In Middleton v. Southern Pac. Co. (C.C.A.) 61 F. (2d) 929, 930, certiorari denied 289 U.S. 736, 53 S.Ct. 658, 77 L.Ed. 1484, it was held: “That the work which one is actually doing at the time of the injury, and not the work which he expects to do, determines whether he is engaged in interstate commerce, * * * and that the mere expectation that one previously, but not presently, engaged in such commerce, would in the immediate future return to it, is not sufficient to bring the case within the act. * * * It has been repeatedly held that the true test is the nature of the work actually being done at the time of the injury, not what the employee might do, or was expecting later to do.” In Southern Ry. Co. v. Pitchford (C.C.A.) 253 F. 736, 737, the plaintiff was employed in cleaning and icing cars both intrastate and interstate; he was injured while preparing to load ice into a box to be placed in the cars in the course of icing; the first cars he would have iced had he not been injured were interstate cars. It was held that the employee at the time he was injured was not engaged in interstate commerce, the court saying: “It is immaterial that the plaintiff's last previous work may have been cleaning an interstate car, or that his next work would certainly have been icing an interstate car from the ice box.” In Gidley v. Chicago Short Line Ry. Co., 346 Ill. 122, 178 N.E. 399, 401, the employee was engaged as a switchman in the yard of the defendant, switching both interstate and intrastate cars; his duties required him to ride a short distance on the engine, which struck a spout of a coal chute near the track; and plaintiff was injured. The court held that to recover under the Federal Employers' Liability Act the employee must show that at the time of the injury he was engaged in interstate commerce or with its instrumentalities, and that this was not done by showing that in the yard both intrastate and interstate shipments were handled; that the question was not what the employee had expected to do, “but what he was doing at the time he was injured--i. e., whether or not at that particular time he was engaged in interstate commerce or in work so closely related thereto as to be practically a part of it.” The opinion cites a very large number of supporting cases and suggests that the engine on which the employee was riding was not attached to any interstate car at the time of the injury, and held that the plaintiff was not employed in interstate commerce at this time. See, also, Erie R. Co. v. Welsh, supra, and Illinois Central R. Co. v. Behrens, supra, to the same effect.

Plaintiff also cites a number of cases tending to support his theory that the work in which plaintiff was engaged was not confined to the thirty intrastate cars, but also included the remaining fifteen cars; that his crew was to break up the entire 45 cars, and this first movement of cutting off the westerly 30 cars was the first step in breaking up the entire string of 45 cars; that the operation must be viewed as a whole, citing Davis v. Dowling (C.C.A.) 284 F. 670;Stottle v. Chicago, R. I. & P. Ry. Co., 321 Mo. 1190, 18 S.W.(2d) 433;New York Central R. Co. v. Carr, 238 U.S. 260, 35 S.Ct. 780, 59 L.Ed. 1298;Louisville & N. R. Co. v. Parker, 242 U.S. 13, 37 S.Ct. 4, 61 L.Ed. 119;Reap v. Hines (C.C.A.) 273 F. 88;Baltimore & O. R. Co. v. Flechtner (C.C.A.) 300 F. 318; and Roberts, Federal Liabilities of Carriers, vol. 2, § 743. These cases cited...