Pelton v. Illinois Central Railroad Co.

• Decision Date: 19 December 1914
• Docket Number: 29623
• Parties: W. L. PELTON, Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant
• Court: Iowa Supreme Court

150 N.W. 236

171 Iowa 91

W. L. PELTON, Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant

No. 29623

Supreme Court of Iowa, Des Moines

December 19, 1914

REHEARING DENIED WEDNESDAY, JUNE 30, 1915.

Appeal from Webster District Court.--HON. R. M. WRIGHT, Judge.

ACTION for damages for personal injuries to an alleged employee. There was a verdict and judgment for the plaintiff. Defendant appeals.

Affirmed.

Kenyon Kelleher & O'Connor and Price & Joyce, for appellee.

Helsell & Helsell, for appellant.

EVANS J. LADD, C. J., WEAVER and PRESTON, JJ., concur.

OPINION

EVANS, J.--

1. Action was brought under the Federal Employer's Liability Act. The petition alleged that the plaintiff was a brakeman in the regular employment of the defendant railroad company, and that he was injured through the negligence of the company. It is also averred that the defendant was then and there engaged in interstate commerce, and that the injury of the plaintiff was sustained "while he was employed by such carrier in such commerce." The answer was a general denial, and pleas of contributory negligence and assumption of risk.

One of the questions put forward by appellant is whether, at the time of the injury, the plaintiff himself was employed by the defendant in interstate commerce. And this depends upon the question whether, at the time of the injury, the plaintiff was employed in the operation of the train upon which he was riding, or whether he was riding thereon as a passenger to Fort Dodge, which was one of the terminals of his ordinary run as brakeman. The plaintiff was concededly an employee of the defendant, and had been for some years. He was engaged as head brakeman, and was one of a through freight crew. This train crew consisted of conductor Emory, head brakeman Pelton, and rear brakeman Fuhrman. The engine crew consisted of engineer Haviland and fireman Johnson. The above named generally worked together as one crew upon "through freight" trains. Their run was from Fort Dodge to Council Bluffs. The accident in question happened upon a passenger train and on November 20, 1911. The crew above named was in charge of that particular train, under special orders to that effect.

Whether such order included the plaintiff or imposed any duty upon him with reference to such train is one of the questions raised in argument, the defendant contending that there was insufficient evidence to support an affirmative finding on that question. The defendant concedes that that particular train was engaged in interstate commerce at the time. But it contends that the burden was upon the plaintiff to prove that he was engaged in such commerce; that is, that his employment related to the operation of that particular train at that time. Plaintiff's counsel concede that this burden is upon them, and contend that the evidence is abundant to support such burden. It appears from the evidence that the defendant's regular through passenger train, known as No. 2, was due to leave Council Bluffs for the east about 6 P. M. On the day in question, it was held for a brief time to await the arrival of a car over the Union Pacific Railroad, which car was occupied by a company of soldiers, destined for some eastern point. The delay in the arrival of such car over the Union Pacific was such that the defendant company sent on this passenger train No. 2 without waiting for it. At the same time, it ordered a special train to be made up, for the purpose of transporting the car of soldiers as soon as it should arrive. Such special train was run as section 2 of No. 2. It was deemed as a first-class passenger train, and entitled to the same rights and subject to the same regulations.

The natural inference from the record is that there was no regular train crew available for use upon this temporary train. Conductor Emory and his crew were in Council Bluffs, having brought in a through freight train the day before. The superintendent of the defendant company, through the train dispatcher, directed this crew to take such train from Council Bluffs to Fort Dodge. There is no substantial dispute up to this point. It is the contention of the defendant, however, that such order of the superintendent did not contemplate the inclusion of the plaintiff as a member of the crew, because only one brakeman is included in a passenger train crew, and that the plaintiff, as head brakeman, was, therefore, unnecessary for the purpose of operating this train.

The testimony for the plaintiff tends to show that he was in fact called out as a member of the crew by the regular "caller," in the regular way, and assigned to this train as a member of such crew. Such call included both the engine crew and the train crew.

The plaintiff testified as follows:

"I was at my brother's residence at Council Bluffs at the time of the call. I was called by the call boy along about 6:30 for 7:30 P. M." Q. "What call boy?" A. "The caller for the Illinois Central. I didn't know the call boy only by sight. I had seen him before. I had been called by him." Judge Helsell: "Well, I don't remember whether there is anything more in that answer but I move to strike out from the answer that part of it which says 'call boy for the Illinois Central Railroad' as incompetent and the foundation not laid." (Motion denied. Defendant excepts.) A. "I wasn't given a specified time before the departure of that train. I proceeded from the passenger depot to the yard office and asked the yardmaster where my caboose was and he told me on the main line. I went to my caboose, took my lantern and lit it and went to the roundhouse, expecting to find my engine there. The engineer and fireman were already there and the engine ready to proceed to the depot. I threw the switch and let them out and gave them the signal to back up, which they did. I hadn't seen anyone in the meantime, nor received any instructions. I didn't see Mr. Emory. Mr. Fuhrman wasn't there when I left the depot. I rode on the engine to the depot, back to the yard office where we picked up the caboose. It was standing on the main line and had been thrown out there by the switch engine, I suppose. We coupled on to it and backed to the passenger station. I coupled it myself. I rode back to the depot on the front end of the caboose. That was about 7:00 P. M. We then came to what we call the cross-over switch near the depot, and gave him a stop signal and cut off and lined the switch in through the cut-off so he could get in on the Union Pacific transfer, where I knew that the switch engine would back in on with the coach. That was to be put in ahead of our caboose. I knew about the tourist coach because I had been told of it by the yardmaster. The caboose was then cut off from the engine. I cut it off on one side of the cars and let him go ahead through the switch and put him on what they call the east main south track. I mean that I let him head down the track, that is, the engineer, W. J. Haviland. The fireman was C. O. Johnson. After they headed down there, I lined my main line switch back for the main line through there and threw my cut-off switch so when they came down the main line it would be in position for them to back up, when they came in from the cut-off. After that, I went back to the way car and changed my clothes. I found the rear brakeman, Mr. Fuhrman, there changing his clothes. I didn't see Emory at that time, it was about 7:40 before this tourist car was brought back there by the switch engine. When they came up, the Illinois Central switch engine, located at Council Bluffs, backed the coach in onto our caboose. Then next I lined Mr. Emory back so he could go out and get them started. I mean the cut-off switch. I then went up and talked to the rear brakeman. The switch engine went down in the yards. My engine was just over the crossing. They coupled the coach onto the way car. The caboose, coach, and engine, when they were all coupled together, were just a little north of the passenger station and they departed from that point. I saw Mr. Emory when he came out with the orders to give to the engineer. I didn't see the orders at all." Q. "What did Mr. Emory, if anything, say to you?" A. "'Go ride ahead.' That is an expression that is used in railroad parlance and means, to railroad men, to ride the engine. Mr. Emory was the conductor of that train. He gave the signal to go and I climbed upon the engine with the engineer and firemen. I had not examined these orders. We left Council Bluffs at 8:00 o'clock P. M. I rode on the engine up to the point of the collision." Q. "What were your duties on this train?" (Objected to, as sufficient foundation has not been laid and it calls for the conclusion and opinion of the witness, a matter that is one of the issues to be determined by the jury in the case.) A. "The customary duties are to take my engine from my train and to bring my engine from the roundhouse to the train." Senator Kenyon: Q. "Well I refer now to when the train was in operation, after leaving Council Bluffs." A. "Oh, take the head end, if necessary, in case of emergency. I paid attention to the train as we were running between Council Bluffs and Logan. I looked back to see if everything was all right, looked out of the cab window. I did that occasionally."

Conductor Emory testified as follows:

"Am now employed by the Illinois Central as a freight conductor. Have been such a conductor for 15 years. Before that time, I was a brakeman. My time is not entirely taken up with my work as a freight conductor. Sometimes I run passenger trains sometimes freight. I have a certain number of brakeman in my crew. I have two brakemen, as a general rule. We go together; but when we are called upon from freight service to run a passenger train, we do...