Ohio Valley Electric Ry. Co. v. Brumfield's Adm'r

• Citation: 203 S.W. 541,180 Ky. 743
• Parties: OHIO VALLEY ELECTRIC RY. CO. v. BRUMFIELD'S ADM'R.
• Decision Date: 28 May 1918
• Court: Court of Appeals of Kentucky

203 S.W. 541

180 Ky. 743

OHIO VALLEY ELECTRIC RY. CO. v. BRUMFIELD'S ADM'R.

Court of Appeals of Kentucky.

May 28, 1918

Appeal from Circuit Court, Boyd County.

Action by James Brumfield against the Ohio Valley Electric Railway Company. From judgment for plaintiff, defendant appeals plaintiff dying and his administrator prosecuting the action as appellee. Affirmed.

Hager &amp Stewart, of Ashland, and Jno. L. Smith and Geo. B. Martin both of Catlettsburg, for appellant.

John W Woods, of Ashland, for appellee.

CARROLL J.

The Ohio Valley Electric Railway Company owns and operates a line of electric railway in the states of Kentucky and West Virginia, and at the time Brumfield received the injuries out of which this litigation arose the railway company was admittedly engaged in interstate commerce; whether Brumfield was engaged in such commerce at the time he received the injuries complained of, although he was then an employé of the railway company, is one of the principal issues in the case. Brumfield, since the judgment appealed from was rendered, has died, and the action is now being prosecuted by his administrator, and it is the contention of the administrator, as it was the contention of Brumfield during his life, that he was engaged in interstate commerce at the time, when as an employé of the railway company he was injured; while the railway company insists that Brumfield was not employed by it in interstate commerce at that time.

There is no difficulty about the law upon this point, because an action by an injured employé to recover damages under the federal Employers' Liability Act cannot be maintained unless the railway company was at the time engaged in interstate commerce, and he was, at the time the injury complained of occurred, engaged by it in such commerce. When, however, it comes to applying the law to the facts of the particular case, it is often a matter of serious difficulty to determine whether the injured employé was, at the time he received the injuries complained of, employed by the interstate carrier in a work connected with interstate commerce, and this question must, in every case, be determined by the facts of the particular case. Therefore we will relate, with some particularity, the facts of this case for the purpose of ascertaining whether Brumfield, when injured, was employed in interstate commerce.

The railway company operated an electric railway running from Ashland, in the state of Kentucky, to Huntington and other points, in the state of West Virginia, and it is conceded, as we have said, that in July, 1914, when Brumfield sustained the injuries that were the basis of this suit, it was engaged in interstate commerce. Brumfield, at the time, was what might be called a section hand, or trackman, and as one of a crew of men, was engaged, with the other men, in helping to move a lot of old and worthless ties from where they had been thrown by the side of the track of the railway company in Huntington, to a fill on its line of railway between Huntington and Ashland. On this line of railway between these points there had formerly been a trestle, but a few years before the accident to Brumfield the railway company had made an embankment or fill to take the place of the trestle, and in making this fill it used ties, cinders, ashes, and other refuse picked up at different places on its line. After the fill had been sufficiently constructed to permit the passage of cars over it, it continued to dump on the sides of it ties, ashes, cinders, and other refuse gathered at different places along its line for the purpose, as contended by Brumfield, of strengthening the fill; while the railway company contend that it dumped this matter there, not to strengthen the fill, but because it was a convenient place to dispose of useless stuff. Brumfield and his crew on July 14, 1914, loaded a truck with the old and worthless ties picked up along the track of the railway in Huntington, and run the truck out to this fill for the purpose of throwing the ties off the track on the side of the fill, and it was while engaged in unloading the truck at the fill that Brumfield received the injuries that subsequently resulted in his death. At this point, it is convenient to say that Brumfield testified on the trial of the case, but died after judgment for $10,000 had been given in his favor, and so his administrator is the appellee on this appeal. It may also be here said that the railway company is not making, on this appeal, any question about the size of the verdict, or that the injuries sustained by Brumfield were not caused by its negligence.

Coming now to set out in more detail the evidence as to the purpose for which these ties were being dumped at the fill, Brumfield testified, in substance, that he was a section hand, working with a section crew, doing such things as were needed in the repair of the track; that the crew would haul old brick and dirt and ties from places where they had been thrown by the side of the track to the fill, and he understood that the purpose of putting the ties and other stuff at the fill was to widen and strengthen the roadbed at that place; that before the day of his injury he had helped to unload at this fill rock, dirt, ties, and other stuff, carried from different places on the line; that a great many other ties he had helped to unload there, and thrown down the side of the fill, had been covered up with ashes, cinders, and other refuse; that by the use of this material, in this way, the fill was made wider and in fact at the time of the trial was about two feet wider than at the time he was hurt. William Gunther, who had worked for the railway as a foreman from 1900 until March, 1914. testified, in substance, that when the culvert was taken out and an embankment made in its place, cinders, dirt, ashes, ties, and other kinds of rubbish were used in making the fill; that ties thrown over the embankment would be covered up with the other rubbish; that after the cars commenced running over the fill it was made wider by ties and other rubbish thrown on the sides; that the purpose of widening the fill was to make it more substantial. M. D. Schaffer, who was supervisor of the tracks of the company in 1914, testified:

"Q. What were your duties with reference to the track at that time? A. Well, I had that part of it to look after, keep it in running condition, and also had the new work to take care of, if they built any new line, or any thing of that kind. Q. Look after the making of the fills? A. Well, yes. Q. And take care of the refuse and ashes and things of that kind? A. Yes, to a great extent. Q. What was it customary to do with the ashes and refuse ties that you got out of the track where you was changing it? A. Well, they went to make fills mostly. * * * Q. Now, to refresh your memory I will ask you if Mr. Magoon didn't give you some order about 1914, July, with reference to the putting of the stuff in this fill that had been cleaned up along the track, putting it in this fill at Camden Park? A. Yes, he always wanted everything put in there. Q. What for? A. Well, in the first place to keep--to protect the fill. Q. Were the ties put in there for the same purpose as the rest of the material was? A. Yes, sir. Q. State whether or not in July, 1914, along there, you put material into this fill for the purpose of protecting it and strengthening it at that point. A. I can't say at that time, of course, but before that, I can't say that it was; no, sir. At this particular time, I don't know, I can't say that it was absolutely necessary; they put it in there and had been throwing the stuff there for a number of years, I don't know how long a while, of course the order never was annulled. Q. When was the order annulled? A. I believe it was about last March, a year ago somewhere. Q. About March, 1915? A. Yes, I think it was March, as well as I remember. Q. Now you say it wasn't necessary to put stuff in there to protect the fill, what did you mean, now, in July, 1914? A. Well, I judge it was not in any sense necessary to protect it. Q. Was not? Do you know how it was at that time? A. I don't know about that, as I said they had been putting stuff in there for a number of years and the order had never been countermanded and stuff was still being put in it. Q. Up to what time? A. Up until last March. Q. Since July, 1914, how much stuff have they put on that fill on the south side next to the river? A. Well, I can't say. I don't know how much, considerable; they have hauled ties there and have hauled dirt there, and they hauled ashes there. Q. State whether or not they covered up the ties put in there in July, 1914. A. O, yes, covered up a good many of them. Q. Tell the jury what order, if any, you had from Mr. Magoon with regard to cribbing the ties put in there? A. Yes, he called my attention to that; said to me to have the men crib the ties in there to protect the fill--to keep the water from it. Q. What do you mean by cribbing ties? A. That is to pile them in a manner so that they would hold the dirt at the foot of the fill, cross-pile them at the foot of the fill. Q. What did you do with the dirt then? A. The dirt then, it would go down to the ties and catch there and hold instead of going on and leaving them. Q. That protected the fill didn't it? A. Yes, supposed to."

For the railway company, Fairchild, Harris, Humphrey, and other witnesses testified that these old ties and other rubbish were thrown over the banks of this fill merely because it was a convenient place to get rid of such useless rubbish, and not with any purpose of strengthening or making safer the fill. With the evidence on this issue in this condition, the court told the jury that:

If they should "find and believe...