Morrison v. Chicago, M. & St. P. Ry. Co.

Decision Date01 October 1918
Docket Number14428.
Citation175 P. 325,103 Wash. 650
CourtWashington Supreme Court
PartiesMORRISON v. CHICAGO, M. & ST. P. RY. CO.

Appeal from Superior Court, Spokane County; Bruce Blake, Judge.

Action by Maud Morrison, administratrix of the estate of Jean Morrison, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.

Holcomb J., dissenting.

Geo. W Korte, of Seattle, and Cullen, Lee & Matthews, of Spokane for appellant.

Plummer & Lavin and H. G. Kinzel, all of Spokane, for respondent.

CHADWICK J.

This action was brought by Maud Morrison, as administratrix, to recover damages suffered by her and her two minor children through the death of the husband and father Jean Morrison. On the 6th day of September, 1916, Jean Morrison was a foreman in charge of a building and bridge gang of the appellant. His division extended from St. Maries, Idaho, to Malden, Wash. Morrison was an experienced man in his employment. A part of the equipment of the bridge gang was a gasoline car. The day before the accident, Morrison had repaired the brake blocks by nailing a strip of iron along the face. He went to Spokane in the afternoon and returned at noon the next day, meeting up with his gang at about noon. During his absence one Weller was in charge. He took the car out of Plummer in the morning. The crew were accustomed to ride on it to and from their work. The brake blocks dragged the wheels, and the car had great difficulty in making the grade, which is fairly heavy at that point. Weller took it upon himself to remove the iron shoes. Morrison arrived at Mowry, where the gang were employed, about noon and took charge of his crew. The gang were engaged in unloading concrete tiling to be used in replacing wooden culverts. The tiling had been shipped from Spokane on five cars and had landed at Mowry, which is a blind siding west of Plummer Junction, three days before. At about 5:30 p. m. Morrison went to a telephone booth, which is maintained for the convenience of appellant's employés, and called the agent at Plummer. The agent details the conversation:

'Q. Tell the jury what Morrison said to you when he called you on the phone. A. When he rang and I answered, he said: 'Hello, Frank.' I said: 'Hello, Jean.' He said: 'How is second 63?' I said: 'They are at Peedee. I was just talking to the conductor, and they will be at Plummer or out here just ahead or behind 27.' He said: 'All right, Frank. I am coming down the mountain.' That is all that was said, and he hung up.'

First 63 is a regular freight west bound, and second 63 is probably a second section of the same train. We do not remember that the record makes this clear. First 63 was due at Plummer Junction at 10:34 a. m., and at Mowry at 11:25 a. m. While the men were eating their dinner, a west-bound freight passed. It carried white flags to indicate that it was an irregular train. It is the theory of counsel for appellant that Morrison negligently assumed that this train was first 63, having passed Mowry at about the time first 63 would be expected to pass, and it was for this reason that he asked for the whereabouts of second 63 which he would have reason to believe would follow the first of that number.

One or more of the witnesses say that Morrison said just before going to the telephone that he was going to get a line up, which means information as to the movement of trains. The witnesses say that when he returned 'he said we had clear sailing to Plummer Junction.' The men got on the car with Weller at the lever. Morrison and three others were riding on the front end of the car. They had gone about a mile and a half when they came upon a freight train about 300 feet away and coming down the hill. All of the men got off the car, Weller being the last to leave it, but Morrison, who was standing up crying, 'Stop it! Stop it!' was killed by the passing train.

Negligence is alleged in two counts: First, that appellant was negligent in that it gave, through the agent, wrong information as to the location of the train which collided with and killed Morrison; and, second, that the brake shoes on the gas car had without his knowledge been tampered with by one of his men and so changed that their breaking power was insufficient to stop the car and avoid the collision after the train was sighted.

Aside from the question of negligence, the main contention of the appellant is that the deceased was not 'employed in interstate commerce' as the term has been defined and applied by the Supreme Court of the United States when considering the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]). Counsel for both sides assume to cite apt authority to sustain their respective contentions, and quarrel violently as to what the Supreme Court has held under the act. Counsel for appellant insists that the later opinions of the court indicate a recession from the holdings of some of the earlier cases, notably the Pedersen Case, 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153, upon which respondent confidently relies, while opposing counsel insists with an equal show of authority that the court has not questioned, but has rather reaffirmed, the Pedersen Case, and proves his position by reference to later decisions of the court which cite the Pedersen Case as authority. It would lead to no result worth while to review the several opinions of the Supreme Court with a view to judicially declaring our opinion of the attitude of the court toward the Pedersen Case. All of the decisions of that court are learned discussions when read in the light of the facts of the case at hand, but they are not always helpful as authority. They are in some respects seemingly contradictory. It could hardly be otherwise, for, the employer being engaged in interstate commerce and intrastate commerce at one and the same time, it would seem to be impossible to lay down a general rule which would govern in every case. To quote from a writer in the Docket, vol. 2, No. 39, April, 1918:

'The chief difficulty, perhaps that is usually met with in the attempt to solve the question, is due to the fact that practically all railroad tracks, and a large majority of other railroad facilities, are used in both interstate and intrastate commerce, so that the line of demarcation, the 'twilight zone,' between the two uses, is necessarily uncertain and incapable of being reduced to a state of certainty.'

However much is made of the definition in the Pedersen Case and repeated in several succeeding cases: 'The true test always is: Is the work in question a part of interstate commerce in which the carrier is engaged'--which to the writer is no definition at all. It conveys no more meaning than the letter of the act itself, which permits a recovery if the one injured is at the time 'employed in interstate commerce.' The question, 'What is interstate commerce?' is still open, for, as said in the same case:

'In order to clothe an employé's employment with an interstate character, it must be shown that the work that he is performing had some direct relation and immediate connection with the interstate commerce of the employer.'

We find ourselves unable to harmonize the decisions of the Supreme Court upon the federal Employers' Liability Act. It is patent, however, that the law is intended to be applied in spirit rather than by letter. It is useless to attempt an accurate definition of an act or series of acts which will bring a case within or place it without the provisions of the statute. As it seems to us, the dominant thought underlying the question of whether in a given case an employé was or was not engaged in 'interstate commerce' is this: Would the performance of the act in which the employé was engaged directly and immediately tend to facilitate the movement of interstate commerce, or, conversely, would the failure to perform the act directly and immediately interfere with or hinder the movement of such commerce? In applying this test, the three essential factors to be considered are time, place, and intent. That is to say, Was the act which the employé was performing in point of time, place, and intent so directly connected with interstate commerce as to constitute an integral part of interstate transportation? If it was, the employé is entitled to the protection of the act. If not, he is not. This brings us, as in all cases brought under the act, to the facts of the instant case. The work being done and its relation and connection with the interstate commerce of the employer, or its lack of such relation and connection, must be found in the record. We shall quote all of it that pertains to the subject. We have italicized the more pertinent parts. The head carpenter testified:

'Direct: Q. And state whether or not you had charge of the providing of the materials for the use of this gang in keeping up this roadbed as I have described? A. Yes, sir. Q. Do you recall the work that was being done on the 6th of September last at Mowry by Mr. Morrison and his gang with reference to unloading some concrete pipe? A. Yes, sir. Q. State whether or not that concrete pipe was company property for repairs, to use as repairs? A. That was company property, and not to be used as repairs; it was to be used as renewals. Q. Was for what purpose as renewals? A. Renewal of culverts, when the old culverts live their life out. Q. In other words, it was company material? A. Yes, sir; company property. Q. Yes, to be applied to the roadbed whenever needed to be applied? A. Yes whenever proper. Q. Where did that come from? A. I think it came from Massy & Co. of Spokane, and was ordered through them. Q.
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