Phillips v. Chicago & N. Ry. Co., 27138.

• Decision Date: 19 April 1929
• Docket Number: No. 27138.,27138.
• Citation: Phillips v. Chicago & N. Ry. Co., 225 N.W. 106, 177 Minn. 233 (Minn. 1929)
• Court: Minnesota Supreme Court
• Parties: PHILLIPS v. CHICAGO & N. RY. CO.

225 N.W. 106

177 Minn. 233

PHILLIPS v. CHICAGO & N. RY. CO.

No. 27138.

Supreme Court of Minnesota.

April 19, 1929.

Appeal from District Court, Hennepin County; Mathias Baldwin, Judge.

Action by Fred Phillips against the Chicago & Northwestern Railway Company. Verdict for plaintiff. From an order denying its motion in the alternative for a dismissal of the action and judgment notwithstanding the verdict, or for a new trial, defendant appeals. Reversed and judgment rendered.

Brown, Somsen & Sawyer, of Winona, Richard L. Kennedy, of Los Angeles, Cal., and Wm. T. Faricy and P. J. McGough, both of St. Paul, for appellant.

Robert J. McDonald, of Minneapolis, for respondent.

TAYLOR, C.

Action under the Federal Employers' Liability Act (45 USCA §§ 51-59) to recover for personal injuries sustained by plaintiff while in the employ of defendant at Fulton in the state of Illinois. This is the second trial. At the conclusion of the first trial the action was dismissed by the trial court on the ground that plaintiff was not engaged in interstate commerce and was within the Workman's Compensation Act of the State of Illinois (Laws 1913, p. 335, as amended). On appeal this court granted a new trial. Phillips v. C. & N. W. Ry. Co., 173 Minn. 169, 216 N. W. 940. The second trial resulted in a verdict for plaintiff. Defendant appealed from an order denying in toto its motion in the alternative for a dismissal of the action, for judgment notwithstanding the verdict, or for a new trial.

Before answering defendant appeared specially and moved to set aside the service of the summons, asserting, among other things, that requiring defendant to defend the action in this state imposed an undue and an unreasonable burden on interstate commerce. The motion was overruled. Defendant has preserved its rights thereunder, and asserts here that the court was without jurisdiction to entertain the action, although recognizing that the question has been decided against it by this court in several previous cases. Erving v. C. & N. W. Ry. Co., 171 Minn. 87, 214 N. W. 12; Kobbe v. C. & N. W. Ry. Co., 173 Minn. 79, 216 N. W. 543; Gegere v. C. & N. W. Ry. Co., 175 Minn. 96, 220 N. W. 429. The ultimate decision rests with the federal Supreme Court, but until that court speaks we adhere to our former ruling.

That plaintiff sustained severe injuries while in the employ of defendant, and that the evidence is sufficient to make the question of defendant's negligence a question for the jury, is conceded, but defendant contends that plaintiff was not engaged in interstate commerce, and therefore is not within the Federal Employers' Liability Act, and cannot maintain an action based thereon. Defendant urges that the decision on the former appeal does not preclude an examination and determination of that question on this appeal for the reason that the rule of "the law of the case" does not apply where the decision of this court is reviewable by the federal Supreme Court, and for the further reason that the evidence bearing upon that question at the present trial was more complete and definite than at the former trial.

After the case was remanded both parties amended their pleadings. The evidence at the new trial removes any uncertainty as to the character of the work which plaintiff was employed to do and was doing at the time of the accident. Whether that work was a part of interstate commerce within the meaning of the federal statute is the important question. On the former appeal it was held, one justice dissenting, to be so closely related to such commerce as to bring it within the statute; but, as the question involves the interpretation of a federal statute, upon which our decision is not final, but is reviewable by the federal Supreme Court, the doctrine of the law of the case does not preclude a re-examination of the question. Sands v. American Ry. Exp. Co., 159 Minn. 25, 198 N. W. 402; Louisville & Nashville Ry. Co. v. State of Mississippi, 107 Miss. 597, 65 So. 881; L. & N. Ry. Co. v. Rhoda, 73 Fla. 12, 74 So. 19.

The facts are undisputed. At Fulton, Ill., a freight division point, defendant maintains a machine shop, a roundhouse, a sandhouse, and a sand storage tank. The sand storage tank, from which sand is supplied to locomotives, is elevated about 40 feet above the tracks. The sand is dried and screened in the sandhouse distant 100 feet or more, and is then forced by air pressure through a four-inch iron pipe to the tank. As originally constructed this pipe passed out of the sandhouse underground and then extended upward in a slanting direction to the tank. It was supported by a number of timber frames termed "bents." At times it operated so unsatisfactorily that the necessary sand was supplied to locomotives by carrying it in pails from the sandhouse.

Defendant installed some new machinery in the sandhouse, and on the day preceding the accident disconnected the pipe and then proceeded to relocate it so that it would pass from the sandhouse through the roof and from that point to the tank. To make this change it was necessary to move the supporting "bents," which was done by a bridge crew. Plaintiff was a sheet metal worker's helper and took no part in moving the "bents," but assisted in aligning and reconnecting the pipe. While he was on the top of one of the "bents" engaged in this work, the "bent" fell, and he sustained the injuries for which he seeks to recover.

It is our duty to apply a federal statute, as interpreted and applied by the federal Supreme Court, and we shall re-examine the case for the purpose of determining whether plaintiff was engaged in interstate commerce, within the meaning of the statute as interpreted and applied in the decisions of that court.

In Shanks v. Delaware, L. & W. Ry. Co., 239 U. S. 556, 36 S. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797, that court reviewed its prior decisions, and deduced therefrom that "the true test of employment in such commerce in the sense intended is, Was the employee, at the time of the injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?"

This test has been consistently recognized and applied in the subsequent cases; but, as said by the federal court, while the test is simple and easily expressed, it may be difficult to determine whether a particular employment at a particular time is in interstate or intrastate commerce. Shanks was employed in a machine shop, and was usually engaged in repairing locomotives used in both interstate and intrastate commerce; but on the day of the injury was engaged in changing the location of a countershaft through which power was transmitted to machinery used in the repair work. The court said: "It is plain that Shanks was not employed in interstate transportation, or in repairing or keeping in usable condition a roadbed, bridge, engine, car, or other instrument then in use in such transportation. What he was...