Long, Administrator v. Biddle

• Decision Date: 22 May 1916
• Docket Number: 9
• Parties: LONG, ADMINISTRATOR v. BIDDLE, et al. RECEIVERS ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY
• Court: Arkansas Supreme Court

186 S.W. 601

124 Ark. 127

LONG, ADMINISTRATOR v. BIDDLE, et al. RECEIVERS ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY

No. 9

Supreme Court of Arkansas

May 22, 1916

Appeal from Lawrence Circuit Court, Western District; Dene H Coleman, Judge; affirmed.

Judgment affirmed.

W. P Smith and G. M. Gibson, for appellant.

1. The deceased was not engaged in interstate commerce at the time of his injury. 229 U.S. 146; 233 Id. 473; 180 S.W 443; 238 U.S. 439; 181 S.W. 375; 177 Id. 465; 150 Id. 201.

W. F. Evans and W. J. Orr, for appellees. Ponder & Ponder, of counsel.

The Federal Act applies. Deceased was engaged in interstate commerce and there can be no recovery. 229 U.S. 146; 238 Id. 260; 233 Id. 473; 154 P. 1102; 36 U.S. Rep. 188; 210 F. 870, 92; 219 Id. 150, 180; 172 S.W. 519; 150 N.W. 489; 155 N.W. 504; 196 F. 337; 179 Id. 893; 192 Id. 901; 197 Id. 695; 198 Id. 1.

OPINION

HART, J.

J. C. Long, as administrator of the estate of Lex Long, deceased, instituted this action against the receivers for the St. Louis & S. F. Rd. Co. to recover damages for the alleged wrongful death of his intestate, while in the employment of the railroad company. The material facts are as follows:

In March, 1915, the St. Louis & San Francisco Railroad Company was in the hands of receivers, who operated its line of road. The road extended through Crittenden County and other counties in the State of Arkansas, into the State of Missouri and other states, and was engaged in interstate commerce.

Lex Long was employed as a bridge repairer at the time he received his injuries and was engaged in knocking drift bolts from bridge timbers when he got hurt. His injury resulted in his death. At the time Long received his injuries he was a member of a crew which was engaged in constructing new bridges and removing the old ones. The work is done so as not to interfere with the operation of the road. The crew drives new piling inside of the old ones and caps are put on the new piling. Timbers are then laid on top of the caps or bents, which run the same way the rails run, and are called stringers. The railroad company's ties are laid on top of the stringers and then the rails are laid on top of the ties. The old caps or bents are removed, and, if there is no water under the bridge, they are dropped down on the ground. There was water under the bridge in question, and in such case it was the custom to lay the bents along the side of the dump, clear of the rails so that the bolts might be removed from the bents. The bents which are sound enough to use elsewhere, are then piled up along the right-of-way to be moved. When they are not sound enough for further use, they are piled up along the right-of-way and burned.

Lex Long and a companion were engaged in removing the drift bolts from the bridge timbers when, by some means, the bridge timbers began to roll down the embankment and one of them struck Long, inflicting the injuries which resulted in his death. The bolts were being taken out of the bents in order that they might be piled up and then loaded on the cars and carried into the State of Missouri for use in repairing other bridges. Without stating the particular circumstances which caused the injury to Long, it may be said that they were such as would warrant a jury in finding that they were caused by the negligence of his fellow-servant. That the railroad company was engaged in interstate commerce is conceded. The circuit judge was also of the opinion that Long was employed by the carrier in such commerce at the time he was injured. He did not leave surviving him a widow or children, parents or any other next of kin dependent upon him. Therefore, the circuit judge directed a verdict in favor of the railroad company, and from the judgment rendered, the plaintiff has appealed.

It is conceded that if the Federal statute was applicable, the State statute must yield to it and the plaintiff is not entitled to recover because decedent did not leave surviving him a widow or children, parents or other next of kin dependent upon him. Federal Employer's Liability Act of April 22, 1908, 35 Stat. L. 65, c. 149; (Fed. St. Ann. 1909, Supp., p. 584). The Federal Act is printed in full in 223 U.S. 1. The Federal Employer's Liability Act has for one object, the lessening of danger to employees during interstate transportation and to broaden the relief for damages sustained by employees while so engaged. This statute has been broadly considered and liberally construed by the Supreme Court of the United States. That court has repeatedly held that the right of recovery under the act arises only where the injury is suffered while the carrier is engaged in interstate commerce, and while the employee is employed by the carrier in such commerce.

It is conceded that the railroad company was engaged in interstate commerce at the time its employee was injured and that the real question is whether or not the injuries which caused the death of the deceased were sustained while he was employed by it in interstate commerce. In Pedersen v Delaware, Lackawana & Western Rd. Co., 229 U.S. 146, 57 L.Ed. 1125, 33 S.Ct. 648, Am. & Eng. Ann. Cas., volume 33, 1914C, p. 153, an employee of an interstate railway carrier was killed while carrying a sack of bolts or rivets to be used in repairing a bridge which was regularly in use in both interstate and intrastate commerce. It was held that he was employed in interstate commerce within the meaning of the Federal...