Piggue v. Baldwin

Citation121 P.2d 183,154 Kan. 708
Decision Date24 January 1942
Docket Number35388.
PartiesPIGGUE v. BALDWIN et al.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court.

If an employee of a railroad company suffers injury while engaged in work which brings him within the provisions of the Federal Employers' Liability Act, no proceeding to recover for such injury may be maintained under the Kansas Workmen's Compensation Act. Gen.St.1935, 44-501 et seq.; Federal Employers' Liability Act § 1 et seq., as amended, 45 U.S.C.A. § 51 et seq.

Question whether employee of railroad was covered by the Federal Employers' Liability Act, or by the Kansas Workmen's Compensation Act, at time of his injury, depended on the nature of his work, and not on the nature of the work which he generally or usually performed. Gen.St.1935, 44-501 et seq.; Federal Employers' Liability Act § 1 et seq., as amended, 45 U.S.C.A. § 51 et seq.

A railroad track which carries both interstate and intrastate traffic is an "instrumentality of interstate commerce" within meaning of the Federal Employers' Liability Act. Federal Employers' Liability Act § 1 et seq., as amended, 45 U.S.C.A. § 51 et seq.

One of the purposes of the Federal Employers' Liability Act amendment providing that a carrier's employee whose duties shall be in furtherance of interstate or foreign commerce or shall, in any way directly or closely and substantially, affect such commerce, shall, for the purposes of the act, be considered as employed by such carrier in such commerce and shall be considered as entitled to the benefits of the act, was to extend the provisions of the act to cover all of a carrier's employees whose work, though not in actual interstate transportation or a part of it, furthered interstate commerce, or in any way affected such commerce directly, closely, and substantially. Federal Employers' Liability Act § 1, as amended, 45 U.S.C.A. § 51.

Railroad employee whose duty was to clean up the railroad's tracks used partly to carry interstate traffic, and who at the time of his death was performing such duty, was engaged in "interstate commerce" within meaning of the Federal Employers' Liability Act, and hence no recovery for his death could be had under the Kansas Workmen's Compensation Act. Gen.St.1935, 44-501 et seq.; Federal Employers' Liability Act § 1 et seq., as amended, 45 U.S.C.A. § 51 et seq.

1. Where an employee of a railroad company suffers an injury while engaged in work which brings him within the provisions of the Federal Employers' Liability Act, no proceeding to recover for such injury may be maintained under the State Workmen's Compensation Act.

2. A railroad track which carries both interstate and intrastate traffic is an instrumentality of interstate commerce.

3. Amendment of the Federal Employers' Liability Act was intended to bring within scope of the act all employees whose work at time of injury was not in actual interstate transportation or a part of it, but any part of whose work furthered interstate commerce, or in any way affected such commerce directly, closely, and substantially.

4. The record in a workmen's compensation proceeding examined and held, the evidence was sufficient to support the finding of the district court that the workman was engaged in a type of work at the time of his death which brought him within the provisions of the Federal Employers' Liability Act and the proceeding under the State Workmen's Compensation Act could not be maintained.

Appeal from District Court, Montgomery County; J. W. Holdren, Judge.

Proceeding under the Workmen's Compensation Act by Catherine Piggue compensation claimant, opposed by L. W. Baldwin and Guy A Thompson, trustees for the Missouri Pacific Railroad Company and the Missouri Pacific Railroad Company, to recover for the death of the claimant's husband, who was an employee of the Missouri Pacific Railroad Company. The commissioner made an award in favor of the claimant, and appeal was taken to the District Court. From a judgment of the District Court holding that claimant's husband was not within the provisions of the Workmen's Compensation Act, the claimant appeals.

Judgment affirmed.

SMITH, J., dissenting.

Harold McGugin, of Coffeyville, for appellant.

W. P. Waggener, O. P. May, B. F. Waggener, and Ralph M. Hope, all of Atchison, for appellees.

ALLEN Justice.

The claimant filed this suit as a proceeding under the workmen's compensation act to recover for the death of her husband who was an employee of the respondent railroad company. The commissioner made an award in favor of the claimant which was appealed to the district court. The district court held that claimant's husband at the time of his death was engaged in work which brought him within the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., consequently that the State Workmen's Compensation Act, Gen.St.1935, 44-501 et seq., did not apply and the court was without jurisdiction to award compensation to the claimant. From that judgment claimant has appealed.

If the district court was correct in its conclusion as to the application of the Federal Employers' Liability Act, it will be unnecessary to consider other questions argued in the briefs.

Claimant's husband was employed by respondent in its yards at Coffeyville to clean up its tracks. His general duty was to clean up cinders, papers and anything else which got on the tracks and which if allowed to remain might hinder the use of the tracks by the trains, engines and cars passing over them.

At the time of his death the workman was removing a pile of cinders with a shovel and wheelbarrow from a track in the yards which was known as the "receiving track." On December 12, 1940, the workman had eaten his lunch between 12 and 1 o'clock. Some time between 1 and 2 o'clock while he was shoveling up this pile of cinders which had been left by an engine on the "receiving track," the workman was seen to suddenly slump to the ground. He died within a few moments after being picked up by fellow employees.

If the workman in this case at the time of his death was engaged in work which brought him under the Federal Employers' Liability Act, this proceeding under the State Workmen's Compensation Act can not be maintained. Krouse v. Lowden, 153 Kan. 181, 184, 109 P.2d 138.

Another proposition which should be noted at the outset is that the question of whether this employee was covered by the Federal Act depends upon the nature of his work at the time of his death and not upon the nature of the work which he generally or usually performed. Krouse v. Lowden, supra.

The evidence conclusively shows that the "receiving track" upon which claimant's husband was at work at the time of his death was the track over which freight cars received from the "Katy and Santa Fe" were switched to the Missouri Pacific. Many of these cars came from Kansas City, Missouri, and other points-- some were destined for the industries of Coffeyville, while others, destined for points further south, were taken on down into the yards to be made up into trains going south into Oklahoma. The Oklahoma state line was approximately two miles south of the place where the employee died.

There can be little doubt under this state of the facts but that the track upon which claimant's husband was working did carry interstate traffic, and the fact that it may have also carried intrastate traffic is of little moment in this case, since a railroad track does not cease to be an instrumentality of interstate commerce simply because it is also used for intrastate traffic. Coil v. Payne, 114 Kan. 636, 220 P. 172; Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas.1914C, 153; New York Cent. R. Co. v. Porter, 249 U.S. 168, 39 S.Ct. 188, 63 L.Ed. 536; Rader v. Baltimore & O. R. Co., 7 Cir., 108 F.2d 980, certiorari denied 309 U.S. 682, 60 S.Ct. 722, 84 L.Ed. 1026. As already noted the purpose of removing the cinders and refuse from the track was to keep it in a usable condition. The evidence shows that it was the practice to keep the "receiving track" open and box cars were not left standing thereon.

The Federal Employers' Liability Act was amended as of August 11, 1939, 53 U....

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