Prince v. Nashville, C. & St. L. Ry.
| Decision Date | 25 June 1925 |
| Citation | 274 S.W. 13,152 Tenn. 189 |
| Parties | PRINCE v. NASHVILLE, C. & ST. L. RY. |
| Court | Tennessee Supreme Court |
Appeal from Chancery Court, Carroll County; Thos. C. Rye Chancellor.
Proceeding bye S. J. Prince, claimant, for compensation under the Workmen's Compensation Act, against the Nashville Chattanooga & St. Louis Railway. From an award of compensation, defendant appeals. Reversed, and suit dismissed.
Maddox & Maddox, of Huntingdon, for complainant.
John T Peler, of Huntingdon, for defendant.
The petitioner, S. J. Prince, filed his petition in the chancery court of Carroll county, against the Nashville, Chattanooga & St. Louis Railway, seeking compensation under the workmen's compensation statute (chapter 123, Acts of 1919), for an injury sustained by him in January, 1922, while in the employ of defendant, and which injury arose out of and in the course of his employment.
Defendant answered the petition, setting up the following defenses:
(1) That defendant was an interstate railway operating between the states of Kentucky, Alabama, and into the state of Georgia, to the city of Atlanta, and that at the time petitioner sustained his injury both defendant and petitioner were engaged in interstate commerce, and therefore the workmen's compensation statute was inapplicable to said injury.
(2) That notice was not given defendant of said accident and injury, as required by the provisions of the workmen's compensation statute.
The cause was heard before the chancellor on oral testimony. He held that petitioner was entitled to the relief sought in his bill; that he was earning $13.44 per week at the time of his injury, and was entitled, under the workmen's compensation statute, to recover $6.72 per week; said sum being one-half of his weekly wage for a period not to exceed 100 weeks, and that the payments should begin on the 11th day of October, 1924, the day after the injury occurred; and the judgment also taxed defendant with the costs of the cause.
From this judgment defendant appealed to this court, after its motion for a new trial had been overruled, and it has assigned errors.
Petitioner was injured while working for defendant as a section hand on October 10, 1924. At the time of receiving the injury complained of, petitioner, with other section hands, was working on section No. 14 of defendant's track in Carroll county, Tenn., and was engaged in "scalping" the bank or dump preparatory to unloading a trainload of gravel intended for immediate use in ballasting defendant's track. On this point petitioner testified as follows:
Harvey Windsor, a witness offered in petitioner's behalf, testified as follows:
On cross-examination this witness testified as follows:
Bill French, another witness testifying in petitioner's behalf, testified as follows:
It is uncontroverted that the track on which petitioner was working at the time he was injured was an interstate track, over which several interstate trains passed daily.
In "scalping" the top of the dump petitioner used a shovel, which struck some small object on the side of the bank, causing it to fly up and strike him in the right eye and permanently destroy the vision of that eye.
After petitioner was injured he went to see the local surgeon at Junction City, which is a town located near the point where the injury occurred. He was subsequently sent by the section foreman to Nashville to see the chief surgeon of the defendant, and was finally sent to the hospital, where his eye was treated for several days. But, as before stated, the injury resulted in the total loss of vision in that eye.
Through its first assignment of error defendant insists that there is no evidence to support the chancellor's judgment.
Through its second assignment of error defendant insists that the chancellor's judgment is erroneous because the undisputed evidence shows that both petitioner and defendant were engaged in interstate commerce at the time petitioner received his injury, and that there was no proof which tended to show that petitioner and defendant were engaged in intrastate commerce at the time of the alleged injury, and that the undisputed proof shows that the cause of action arising out of said injury, if any, would be governed by the federal Employers' Liability Act of 1908 (U. S. Comp. St. §§ 8657-8665) and amendments thereto, and not by the workmen's compensation statute (chapter 123, Acts of 1919).
We are of the opinion that the undisputed evidence, which is set out above, shows that both petitioner and defendant were engaged in interstate commerce at the time of petitioner's injury, and that the workmen's compensation statute has no application to said injury whatsoever.
By section 6 of the workmen's compensation statute it is provided as follows:
In Shanks v. Delaware, L. & W. R. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C, 797, it was held that the true test of employment in interstate 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?"
In Hines v. Industrial Accident Commission, 184 Cal. 1, 192 P. 859, 14 A. L. R. 720, it was said:
"The general test as to the character of the employment is whether the employee was engaged in an act so directly and immediately connected with interstate business as substantially to form a part or necessary incident thereof."
To the same effect is our own case of C., N. O. & T. P. Ry. Co. v. Morgan, 139 Tenn. 31, 201 S.W. 128.
In Thornhill, Admx., v. James C. Davis, Director General of Railroads, 121 S.C. 49, 113 S.E. 370, 24 A. L. R. 617, it was held that the foreman of a track repair and mainteance force, clearing the tracks and right of way of an interstate carrier which is used in carrying passengers and freight for hire in interstate commerce, is engaged in such commerce within the protection of the federal Employers' Liability Act.
In Stavors v. Chicago, Milwaukee & St. Paul Railroad Co. et al., 151...
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