Mcbain v. N. Pac. Ry. Co.

Decision Date18 October 1916
Docket NumberNo. 3688.,3688.
PartiesMCBAIN v. NORTHERN PAC. RY. CO.
CourtMontana Supreme Court

52 Mont. 578

MCBAIN
v.
NORTHERN PAC. RY. CO.

No. 3688.

Supreme Court of Montana.

Oct. 18, 1916.


Appeal from District Court, Silver Bow County; J. B. McClernan, Judge.

Action by J. H. McBain against the Northern Pacific Railway Company. From a judgment for plaintiff and from order denying it a new trial, defendant appeals. Reversed and remanded, with directions.


Gunn, Rasch & Hall, of Helena, for appellant.

Ed Fitzpatrick and G. L. Tyler, both of Butte, for respondent.


HOLLOWAY, J.

The plaintiff recovered a judgment in the district court of Silver Bow county, and the defendant appealed therefrom, and from an order denying it a new trial.

The facts disclosed by the record and pertinent here are that, on October 15, 1912, plaintiff was employed by the defendant as a brakeman on the Pascoe division of the road in the state of Washington, and was at the city of Ellensburg, Wash. The train crew of which he was a member engaged indiscriminately in handling interstate and intrastate shipments of freight. At the time of his injury plaintiff was going from his caboose to the yard office to present a requisition for supplies needed upon the caboose whenever it should be called into service. He started to make the trip on foot, but, a train from the west passing by, he boarded the locomotive, and while riding on it was injured. He had completed his previous run some hours before, and anticipated that he would be again called into service soon after noon on the 15th, but whether to handle interstate or purely local freight he had no means of knowing, as he had not been called for duty; his train had not been made up, and his caboose was on a siding in the yard awaiting assignment.

The action was brought under the federal Employers' Liability Act (35 Stat. at Large, 65), and plaintiff assumed the burden of pleading and proving that at the time he was injured he was engaged in interstate commerce. The allegation of his complaint is sufficient, but does his proof sustain it? The record presents a federal question, and the decisions of the United States Supreme Court upon it are conclusive upon this court. Under a state of facts substantially identical with the facts before us, that court held that it is immaterial that the injured party may have been engaged in interstate commerce immediately before he was injured, or that immediately after completing his then present task he would again engage in interstate commerce, and said:

“The true test is the nature of the work being done...

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