Lindley v. Wabash Railway Company
| Decision Date | 11 July 1930 |
| Docket Number | 27122 |
| Citation | 231 N.W. 812,120 Neb. 195 |
| Parties | HARVEY E. LINDLEY, APPELLEE, v. WABASH RAILWAY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
Where it appears that a state court in which an action is begun refuses to order a removal of the case to the federal court upon proper petition therefor, but notwithstanding such refusal the federal court treats the cause as removed and orders the same remanded to the original forum, no error can be predicated upon such refusal to remove.
In an action under the federal employers' liability Act (45 USCA §§ 51-59) by a brakeman of a railway company for personal injuries occasioned by having fallen under the wheels of a train, it is incumbent upon the plaintiff to prove by a preponderance of the evidence that the instrument that caused his injury was at the time engaged in some phase of interstate commerce.
In an action under the Federal Employers' Liability Act (45 USCA §§ 51-59) against a common carrier by railway by a brakeman for personal injuries, it is sufficient if it appears that the train upon which he was engaged as a brakeman was operating between states and at the time of his injuries was engaged in interstate commerce, notwithstanding such brakeman at the time of his injury was performing the immediate service of assisting in the handling of purely intrastate freight.
Where a brakeman, employed by a railway company upon an interstate train which is capable of being used in the transportation of commercial commodities from one state to another, is negligently injured while assisting in the unloading of purely intrastate freight, such service is so closely connected with interstate commerce as to entitle such employee to recover under the Federal Employers' Liability Act (45 USCA §§ 51-59).
Where an employee brings an action against a railway company to recover damages for personal injuries, basing his right of recovery upon the fact that the defendant had permitted its depot platform to become out of repair and dangerous, the reception of evidence by the trial court, over objection of the defendant, as to subsequent repairs made and precautions taken on behalf of the defendant, after the accident complained of occurred, to prevent the recurrence of similar accidents in the future, constitutes prejudicial error.
Additional Syllabus by Editorial Staff.
Term " employed," in statute permitting recovery by persons employed in interstate commerce, refers to general service which employee is performing for carrier (Federal Employers' Liability Act [45 USCA §§ 51-59]).
Deposit platform, which brakeman in action for injuries claimed was defective, held within statutory classification of " works or other equipment" (Federal Employers' Liability Act [45 USCA §§ 51-59]).
Appeal from District Court, Douglas County; Leslie Judge.
Action by Harvey E. Lindley against the Wabash Railway Company. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Homer Hall and R. B. Hasselquist, for appellant.
Gray, Brumbaugh & McNiel and Miles Elliott, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD and DAY, JJ., and CARTER and CHASE, District Judges.
This is an action brought by Harvey E. Lindley against the Wabash Railway Company to recover damages for personal injuries alleged to have resulted from the negligence of the defendant. The action was brought under the federal statute known as the employers' liability act. The case was tried to a jury, terminating in a verdict for the plaintiff, and from the judgment upon the verdict the defendant presents the record to this court for review.
The defendant is an interstate railway company and was at the times herein mentioned engaged in the business of the common carriage of passengers and freight over its railway system.
The plaintiff, on and prior to December 13, 1926, had been and was employed by the defendant as a brakeman. Early in the morning of December 13, 1926, defendant's local freight train No. 71 left the town of Stanberry, Missouri, for its regular run to Council Bluffs, Iowa; those two points being the southern and northern terminals of its local freight division. The plaintiff on that day was acting as head brakeman on this train. As the train approached the village of Clyde, Missouri, an intermediate station on the division, it slackened its speed until at the time the engine arrived at the station platform it was traveling about ten or twelve miles an hour. The plaintiff was riding on the engine, and as the train came to the depot platform the plaintiff undertook to alight from the steps of the engine upon the platform, and in so doing fell and, in some way, was precipitated under the train, his feet or legs becoming entangled in the trucks of the tank. He was dragged approximately 100 feet before the train came to a stop. While he was thus entangled the wheels of the train passed over a portion of his body, mangling his left leg in such a manner that amputation near the hip resulted. This accident occurred early in the morning following a night of zero weather and the platform was covered with a heavy coating of white frost.
The case seems to have been tried below by the plaintiff upon the theory that the platform at this particular point where he alighted was defective, in that the sills supporting the same had become decayed to such an extent that when the weight of the plaintiff came in contact with the platform it sagged down several inches, thus making an abrupt incline toward the wheels of the train, causing him to slip, fall, and slide thereunder.
The theory of the defendant at the trial was that the platform was covered with heavy frost, and the careless manner in which the plaintiff alighted from the train caused him to slip as he stepped upon the frosty platform, and his injuries resulted because of this dangerous natural condition over which the defendant had no control.
The record is quite voluminous and presents 42 separate assignments of error.
The defendant charges the lower court with error for refusing to order the case removed from the state to the federal court. This contention is entirely frivolous, since it is disclosed by the record that the federal court upon its own motion ordered the case remanded to the state court and dissolved an injunction in which the defendant sought to restrain the plaintiff from proceeding in the state court with the prosecution of the case. From this order of the federal court dissolving the injunction, the defendant prosecuted an appeal to the circuit court of appeals, which court affirmed the dissolution of the injunction by the lower court. The defendant made no further effort to have the case reviewed by the appellate court and the decision thereof became final.
Both at the close of plaintiff's testimony and at the end of the trial, the defendant moved the court to instruct a verdict in its favor because the testimony did not show the case to be one coming within the provisions of the federal employers' liability act; and error is assigned upon the overruling of this motion.
Two separate elements are involved in this contention. If the train was not engaged in interstate commerce, then it becomes immaterial how the injury occurred. If, however, the train was engaged in interstate commerce, then the question arises: Does the statute require that the injury must occur while the employee is handling interstate freight? From the undisputed facts in the record, it appears that this was a regular local freight train of the defendant company operating on its regular division, the southern terminal of which was Stanberry, Missouri, and the northern terminal Council Bluffs, Iowa. A freight train operating between those two points on its regular run is an instrument of interstate commerce and at the time engaged therein as contemplated by the statute. Chicago, R. I. & P. R. Co. v. Wright, 239 U.S. 548, 60 L.Ed. 431, 36 S.Ct. 185; Bower v. Chicago & N. W. R. Co., 96 Neb. 419, 148 N.W. 145. Therefore, the contention that the statute does not apply because the plaintiff received his injuries while he was engaged in unloading of purely intrastate freight is untenable. The record discloses that, if the plaintiff was performing any immediate service whatever for the defendant at the time he received his injuries, it was that of assisting in the unloading of two parcels of intrastate freight. The claim of the defendant is that the particular service which the injured employee was performing at the time of his injury under the statute must be the controlling fact in determining the applicability of the statute. The record shows without dispute that the plaintiff alighted from the train at the station where the accident occurred for the purpose of assisting in unloading two boxes of freight initiating at St. Louis, Missouri, and destined to Clyde, Missouri. The federal statute which we are called upon to construe, so far as concerns this particular question, provides 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 * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves,...
To continue reading
Request your trial