Propst v. Spitznagle

• Decision Date: 20 February 1939
• Docket Number: 27194.
• Citation: 19 N.E.2d 263,215 Ind. 402
• Parties: PROPST v. SPITZNAGLE.
• Court: Indiana Supreme Court

19 N.E.2d 263

215 Ind. 402

PROPST v. SPITZNAGLE.

No. 27194.

Supreme Court of Indiana

February 20, 1939

Appeal from Fountain Circuit Court; O. B. Ratcliff, Judge.

Barnard & Walker, of Indianapolis, and Courtney W. Dice, of Covington, for appellant.

Noel Hickam, Boyd & Armstrong, of Indianapolis, for appellee.

SHAKE Judge.

Appellee recovered a judgment in damages against the appellant in an action for personal injuries. The complaint was predicated on the Federal Safety Appliance Act (45 U.S.C.A. §§ 1-46), and the negligence charged was that the top of a box car had thereon some wet or slippery substance which had adhered to appellee's shoes as he walked thereon in the discharge of his duties as a freight train conductor; that in climbing down from said car by means of grab irons attached thereto, appellee was caused to slip and fall by reason of said substance on his shoes, thereby suffering injuries.

The errors complained of grow out of the overruling of the motion for a new trial. They relate to the giving of instructions 8 and 9, and to the admission in evidence as an exhibit of the shoes worn by appellee at the time of the accident. Said instructions are as follows:

'Instruction No. 8. The court instructs you that if prior to the alleged injury a shipper ordered from the defendant and received on said shipper's switch in the city of Attica, State of Indiana, an empty box car suitable for being loaded with grain for interstate shipment, and that prior to said alleged injury, said car was definitely designated and set aside to be loaded with grain, for the purpose of consigning, shipping and selling the same to a person, firm or corporation located in the city of Chicago, State of Illinois, and that said car was loaded with such freight, and was sold, shipped and consigned by said shipper to such person, firm or corporation located in the city of Chicago, State of Illinois, and if after said car was set upon said switch in said city of Attica and so designated and set aside for said purpose, the defendant caused said car to be removed from said switch and to be reset upon said switch, and in the course of said switching operation and in the course of his employment therein, the plaintiff was injured, then and in that event, the defendant at the time of said injury, if any, was engaging in commerce between two of the several states of the United States, and the plaintiff at said time was employed by the defendant in such commerce.

'Instruction No. 9. The court instructs you that if at the time of the alleged injury the plaintiff was engaged in the course of his duties and pursuant to the order of the defendant, in a switching operation the purpose of which was to set or reset upon a spur track in the city of Attica, Indiana, for unloading a loaded car of coal which had been consigned by a coal mining company in the state of Kentucky to a company using said spur track in the city of Attica, Indiana, and which had been shipped and transported pursuant to said consignment from said Kentucky point to said company in Attica, Indiana, on the Lines of the defendant and its connecting carriers, and that at said time said car of coal had not been unloaded by the consigns, then and in that event, the defendant, at the time of said injury, if any, was engaged in commerce between two of the several states of the United States and the plaintiff at said time was employed by the defendant in such commerce.'

As abstract statements of the law the above instructions are not to be approved. As to number 8, what happened after the accident occurred, with reference to the sale of the contents of the car to someone in Chicago, and the subsequent consignment and shipment of the car to that point, would not determine whether said car was in interstate commerce when the injury occurred. If the grain car had been 'definitely designated and set aside to be loaded with grain, for the purpose of consigning, shipping and selling the same to a person, firm or corporation located in the city of Chicago', to use the language in instruction 8, that would have been enough to make it an instrumentality of interstate commerce. Baltimore, etc., R. v. Faust, 1925, 85 Ind.App. 435, 148 N.E. 433, 150 N.E. 239; Mappin v. Atchison, Topeka, etc., Ry. Co., 1926, 198 Cal. 733 247 P. 911, 49 A.L.R. 1330, certiorari denied In re Mappin's Estate, 273 U.S. 729, 47 S.Ct. 239, 71 L.Ed. 862. When the instruction went further and added 'that said car was loaded with such freight, and was sold, shipped and consigned by said shipper to such person, firm or corporation located in the city of Chicago', it imposed a condition unnecessary to establish interstate commerce. The inclusion of the clause last quoted therefore rendered the instruction more favorable to appellant than it was entitled. The character of the car, as an instrument of interstate commerce, must be determined as of the time when the accident happened, though, of course, its past uses and, under some circumstances, what was afterwards done with it, may throw some light on the subject. Instruction number 9 is open to more serious objections. Whether the coal car referred to therein had terminated its interstate movement did not depend upon the circumstance of unloading. Delivery of the shipment to the...