O'Neill v. Sioux City Terminal Ry. Co.

• Decision Date: 14 February 1922
• Docket Number: 34592
• Citation: 186 N.W. 633,193 Iowa 41
• Parties: MARY AGNES O'NEILL, Appellant, v. SIOUX CITY TERMINAL RAILWAY COMPANY, Appellee
• Court: Iowa Supreme Court

186 N.W. 633

193 Iowa 41

MARY AGNES O'NEILL, Appellant, v. SIOUX CITY TERMINAL RAILWAY COMPANY, Appellee

No. 34592

Supreme Court of Iowa, Des Moines

February 14, 1922

Appeal from Woodbury District Court.--GEORGE JEPSON, Judge.

ONE Patrick O'Neill was killed while employed as a switchman by the Sioux City Terminal Railway Company. His surviving widow seeks to recover compensation under the Workmen's Compensation Law. From judgment denying her claim, this appeal is prosecuted. The facts appear in the opinion.

Affirmed.

Humphrey Barton, J. P. Shoup, and T. P. Cleary, for appellant.

Chandler Woodbridge and Jepson, Struble & Anderson, for appellee.

FAVILLE J. STEVENS, C. J., EVANS and ARTHUR, JJ., concur.

OPINION

FAVILLE, J.

The appellee operates a terminal railway at Sioux City, which is connected with what is known as "the transfer." Several lines of railway entering Sioux City deliver cars at this transfer. Such cars are picked up by the appellee at the transfer and transported over its own tracks, by its own engine, to the points of final destination at certain packing plants.

At the time of the injury in controversy, it appears from the evidence that Patrick O'Neill was a member of a switching crew employed by the appellee. The switching crew had been to the transfer and had taken charge of a string of cars, part of which were to be delivered at the plant of the Cudahy Packing Company, and part at the plant of the Armour Packing Company. The portion of the train to be switched to the Armour plant consisted of nine cars. These were placed on a track belonging to the appellee, leading to said plant. After said cars had been so placed, all of the switching crew except O'Neill took the cars that were intended for the Cudahy plant, and placed the same at said plant. Thereafter the crew, with the engine, returned to the switching track, where the nine cars destined for the Armour plant had been placed. The evidence shows that, when these cars were first placed upon this track, O'Neill was last seen upon the rear car of said string. These cars were left standing about 25 car lengths north from the gate of the Armour yard, at the time the remainder of the crew went to place the other cars at the Cudahy plant. It appears that it was O'Neill's duty to properly set the switch so that said cars could be moved to the Armour plant, and to open a gate or entrance leading to the Armour plant. It is shown that O'Neill had performed both acts.

The crew returned from the Cudahy plant and proceeded to move the nine cars toward the Armour plant. There was no witness to the tragedy, but in some manner O'Neill was run over by the cars in this movement and killed, as they were being backed toward the Armour plant.

I. The only question involved in this appeal is whether or not the decedent, Patrick O'Neill, was engaged in interstate commerce at the time he was killed. It appears from the record that a portion of the string of cars that were being moved to the plant of the Armour company, which cars caused the death of O'Neill, were engaged in intrastate commerce. The evidence shows, however, that one of the nine cars that was being moved to the Armour plant, at the time of the accident, was "A. T. L. car No. 244," which had been delivered to the appellee at the transfer, on the day in question, by the Chicago, Milwaukee & St. Paul Railway Company; and the evidence tends to show that the shipment of this car originated in Chicago, and that said car was consigned to the Armour Packing Company at Sioux City. Said car No. 244 was an empty car of the Armour Tank Line. It was necessary for this car to pass over the tracks and be handled by the appellee company, in order to reach its final destination at the plant of the Armour Packing Company.

It is urged by appellant that there is no sufficient competent evidence in the record to show that car No. 244 was being moved by appellee in interstate commerce at the time that O'Neill was killed. The car inspector employed at the Sioux City Terminal Company testified that car No. 244 came to the terminal over the Chicago, Milwaukee & St. Paul railroad. The yard clerk of the Milwaukee road produced the train record of July 4, 1915, from which it appeared that train No. 63 arrived from the east on July 3, 1915, and that car No. 244 was in said train, and that the shipment of said car originated at Station No. 4 in the Union Stockyards in Chicago, and that it was consigned to the Armour Packing Company at Sioux City. The witness testified that the train record book in which said entry appeared was not made by him, and that he did not know in whose handwriting it was made, but that it was one of the records kept of the movement of cars, in the record room of the Milwaukee road. We gather from the evidence that it was a permanent record, that was required to be kept in the usual course of the business of the said railroad, and showed the point of origin and destination of all cars handled by the railroad at that point.

There was also evidence tending to show that the records of the waybills received by Armour & Company showed that said car No. 244 was at said time engaged in interstate commerce. The competency of this evidence is challenged by the appellant. It may be true that some of this evidence offered by the appellee in regard to the interstate character of the shipment of car No. 244 was not in strict compliance with the rules of evidence, as recognized in courts of record, but there was sufficient competent evidence, aside from that which is challenged, to warrant the finding of the industrial commissioner and of the district court that the decedent was engaged in interstate commerce.

A majority of the arbitration committee denied appellant's claim. On appeal, the industrial commissioner also denied the claim, and upon appeal from his finding, the district court of Woodbury County likewise denied the appellant the relief sought.

Section 17, Chapter 270, of the Acts of the Thirty-seventh General Assembly, provides, in part, as follows:

"The findings of fact made by the industrial commissioner within his powers shall, in the absence of fraud, be conclusive, but upon such hearing the court may confirm or set aside such order or decree of the industrial commissioner, if he finds: * * *

"(4) That there is not sufficient competent evidence in the record to warrant the industrial commissioner in making the order or decree complained of."

We have had occasion to construe this statute, and have held that the finding of the commissioner stands upon the same footing as the finding of a judge or a verdict of a jury, and that it is not to be set aside if there is evidence upon which the finding can rest. We have also approved of the rule that, if the evidence in the case supports the finding of fact as made by the commissioner, the court will not say that the commissioner acted without or in excess of his powers, even though a court, if trying the facts in the first instance, might reach a different conclusion. Rish v. Iowa Portland Cem. Co., 186 Iowa 443, 170 N.W. 532; Bidwell Coal Co. v. Davidson, 187 Iowa 809, 174 N.W. 592; Pierce v. Bekins Van & Storage Co., 185 Iowa 1346, 172 N.W. 191; Pace v. Appanoose County, 184 Iowa 498, 168 N.W. 916. See, also, Kraft v. West Hotel Co., 185 N.W. 895.

In Flint v. City of Eldon, 191 Iowa 845, 183 N.W. 344. we said:

"It is not within the legislative scheme to make a court the reviewer of the facts, and it has been repeatedly held that the court is forbidden to trespass upon the defined jurisdiction of the commissioner, the latter being the sole judge and the final judge of the facts."

Applying this rule to the...