McKee v. Ohio Valley Electric Ry. Co.

• Decision Date: 04 April 1916
• Citation: 78 W.Va. 131
• Court: West Virginia Supreme Court
• Parties: G. L. McKee, Admr. v. Ohio Valley Electric Ry. Co.

78 W.Va. 131

G. L. McKee, Admr.

v.Ohio Valley Electric Ry. Co.

Supreme Court of Appeals of West Virginia.

Submitted March 28, 1916.

Decided April 4, 1916.

1. Commerce Injuries to Servant Employers' Liability Act.

To have right of recovery for an injury, under the Federal Employers' Liability Act, the employe, 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. (p. 132).

2. Same.

An employe 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. (p. 133).

3. Master and Servant Injuries to Servant Actions Questions for Jury.

Whether the foot of a perpendicular, unbraced and unsupported earth wall thirteen or fourteen 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. (p. 136).

4. Trial Instructions Applicability to Case.

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. (p. 135).

Error to Circuit Court, Cabell County.

Action by Gr. L. McKee, administrator, against the Ohio Valley Electric Railway Company. Judgment for plaintiff, and defendant brings error.

Reversed, and new trial allowed.

Vinson & Thompson, for plaintiff in error.

Daugherty & Riggs, for defendant in error.

poffenbarger, judge:

Cecil C. Perdue, plaintiff's intestate, at the time of his injury an employee 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 Pour Pole Creek; and, in an action of trespass on the case, a judgment for $6,000.00 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, West Virginia, to Ashland, Kentucky. Nor is the relation of employer and employee 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 employee 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. Bel. Lack & West. R. Co. v. Yurkonis, 238 U. S. 439; Pederson v. Del. Lack. & West. R. Co., 229 U. S. 146; Second Employers' Liability Cases, 223 U. S., 51; Ill. Cent. R. Co. v. Behrens, 233 U. S., 473.

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 Fed. Rep., 604; Lampkere v. Oregon R. & N. Co., 196 Fed. Rep., 336; N. Pacific Ry. Co. v. Maerkl, 198 Fed. Rep., 1.

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 piers. The east abutment and the column piers had been completed. The trestle seems still to have rested entirely on its original supports, unless some of them had been removed to make room for work in the construction of the abutment and replaced by long girders reaching from the remaining portion of the thestle to the bank at each end. If so, it rested in part on such girders. Such an alteration seems to have been made, but the evidence as to whether it was or not, is indefinite; but, if so, Perdue's work did not pertain, extend to nor touch the girders, the original trestle work, the track, the cars nor anything else then actually used in...