McKee v. Ohio Val. Elec. Ry. Co.
| Decision Date | 04 April 1916 |
| Docket Number | 2836. |
| Citation | 88 S.E. 616,78 W.Va. 131 |
| Parties | MCKEE v. OHIO VALLEY ELECTRIC RY. CO. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
To have right of recovery for an injury, under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913,§§ 8657-8665]), the employé at the time of the injury, must have been in the employ of a common carrier by railroad engaged in interstate commerce and the work in which he was engaged at that time must have been work in such commerce.
An employé of such a carrier, working in an excavation under a wooden trestle on which the employer's track crosses a small stream and near the supporting timbers thereof intended for an abutment of a steel bridge to take the place of the trestle and to be used in lieu thereof when completed, and not repairing or altering the trestle nor otherwise engaged in work on it, or the track, or anything else actually used in the operation of the railroad, is not within the protection of said statute, and for his death occasioned by negligence of his employer no recovery can be had under or by virtue thereof. His right of action arises under the state statute giving damages for death by wrongful act.
Whether the foot of a perpendicular, unbraced, and unsupported earth wall 13 or 14 feet high, composed of firm, hard earth, but subject to vibration caused by the passing of electric railway cars over it at frequent intervals, is an unsafe place to work, may be submitted to a jury for determination, in an action in which there is right of recovery against the master for failure to exercise diligence to provide his servant a reasonably safe place for work.
When for any reason a plaintiff has no right to recover, it is error to give instructions conditionally authorizing a finding in his favor, and also to refuse to give a peremptory instruction to find for the defendant.
Error to Circuit Court, Cabell County.
Action by G. L. McKee, administrator, against the Ohio Valley Electric Railway Company. Judgment for plaintiff, and defendant brings error. Reversed, and new trial allowed.
Vinson & Thompson, of Huntington, for plaintiff in error.
Daugherty & Riggs, of Huntington, for defendant in error.
Cecil C. Perdue, plaintiff's intestate, at the time of his injury an employé of the defendant, an interstate carrier, was killed by a fall of earth, while working in an excavation made for an abutment of a bridge designed and intended to carry the tracks of the defendant's railway over a stream in Cabell county known as Four Pole creek; and in an action of trespass on the case a judgment for $6,000 has been recovered on account of his death, as for damages given by the federal Employers' Liability Act.
The legal status of the defendant is conceded. It operates an interurban electric railway extending from the city of Huntington, W. Va., to Ashland, Ky. Nor is the relation of employer and employé denied. That Perdue was not at the time of the injury which occasioned his death engaged in interstate work is the principal ground of defense, and lack of right of recovery under the statute referred to, if he was not then so engaged, is frankly admitted.
To warrant recovery, the employer must be a railroad company engaged in interstate commerce, and the employé must be engaged in such commerce at the time of the injury. These two circumstances must exist, because the right is purely statutory, and the terms of the statute require their concurrence. Del., Lack. & West. R. Co. v. Yurkonis, 238 U.S. 439, 35 S.Ct. 902, 59 L.Ed. 1397; Pedersen v. Del., Lack. & West. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas. 1914C, 153; Second Employers' Liability Cases, 223 U.S. 51, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A. (N. S.) 44; Ill. Cent. R. Co. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051, Ann.Cas. 1914C, 163.
Employment or work in interstate commerce is not limited or restricted, for the purposes of the act, to employment or work in actual interstate transportation. Its scope includes that, and also work in the operation or repair of cars, engines, appliances, machinery, tracks, roadbeds, works, boats, wharves, and other equipment actually used in interstate commerce. Pedersen v. Del., Lack. & West. R. Co., cited; Columbia & P. S. R. Co. v. Sauter, 223 F. 604, 139 C.C.A. 150; Lamphere v. Oregon R. & N. Co., 196 F. 336, 116 C.C.A. 156, 47 L.R.A. (N. S.) 1; N. Pacific Ry. Co. v. Maerkl, 198 F. 1, 117 C.C.A. 237.
Perdue was not doing any work on any structure or other instrumentality in actual railway use at the time of his injury. Hence, unless the work he was doing was so intimately connected with something else actually used at the time as to make it a part thereof, he was not, in the legal sense of the terms, engaged in interstate commerce. At that time the cars in use were operated, at the place at which he was at work over a wooden trestle spanning the creek. He worked in an excavation made under that trestle and near the supporting timbers thereof for the west abutment or pier of a new steel bridge then to be erected or in process of erection, which, when completed, was to take the place of the trestle and be used in lieu thereof. It does not appear that any part of the new bridge had yet been placed on its...
To continue reading
Request your trial