Reinke v. Thomson, 8421
| Decision Date | 09 September 1941 |
| Docket Number | 8421 |
| Citation | 299 N.W. 868,68 S.D. 187 |
| Parties | IDA REINKE, Respondent, v. CHARLES M. THOMSON, Trustee of the Chicago & Northwestern Railway Company, employer. Appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brown County, SD
#8421–Affirmed.
Churchill & Benson, Huron, SD
Attorneys for Defendant and Appellant.
Douglas Bantz, Van Slyke & Agor, Aberdeen, SD
Attorney for Plaintiff and Respondent.
Opinion filed Sep 9, 1941; Rehearing Denied Nov 29, 1941.
The plaintiff in this action, Ida Reinke, is the surviving widow of August Reinke, who for many years prior to his death, on the 5th day of June, 1939, was employed as a section foreman on the Dakota Division of the Chicago & North Western Railway. Charles M. Thomson, defendant, is the Trustee of the property of the Chicago & North Western Railway Company.
Mr. Reinke lived at, and had his headquarters at, Groton, which is the end of the railway, and the section of railway of which he had charge extended south from Groton a distance of 181/2 miles. One of the implements constantly in use by Mr. Reinke in the performance of his duties as section foreman was a small motor car, which he used to travel over his section of road and to carry such tools and appliances as were necessary in repairing railroad track, and is part of the regular equipment of every section crew. On either side of the motor car used by Mr. Reinke was a trough or tray, as it was technically called, in which certain tools suitable for track repair were carried. In addition to the above tools, Mr. Reinke had provided a box for carrying tools which are referred to in the record as “small tools".
One of Mr. Reinke’s duties was to make track inspections for the purpose of finding and repairing defects in the track. The evidence shows that but one train passed over Mr. Reinke’s section each week. This train came up from Doland on Wednesday. It stayed at Groton over night and returned to Doland Thursdays; and it was the regular duty of Mr. Reinke to make an inspection of the track throughout the entire length of his section between the time when the train went south from Groton on Thursdays and its return from Doland on the following Wednesday. The box of ” small tools” above mentioned was bolted across the rear of the motor car and was invariably taken along when track inspection tours were made.
On the last day of May, 1939, Mr. McDermott, who was roadmaster with supervision over Mr. Reinke’s section of track, and was Reinke’s superior officer, met Mr. Reinke at the southerly extremity of his section, and at a conversation that took place between Reinke and McDermott, the witness Feller (Reinke’s helper) was present and testified to what was said in substance as follows: Mr. McDermott directed Mr. Reinke to take the motor car he was using to Turton and take home with him another car that would be waiting for him at Turton to use while his (Reinke’s) car was being repaired and repainted. Where the car was to be taken to be repaired and repainted was not mentioned, nor was any time mentioned when it was to be taken to Turton.
Pursuant to these directions, Reinke, on the morning of June 3rd, said to his wife before leaving home: But he said nothing about why he was taking it. He then went to the shed where the car was kept and prepared it for the journey. Turton is about 30 miles south of Groton. Shortly after this conversation between Reinke and his wife, a witness, William Inglis, an employe of the Ferney Elevator Company saw Mr. Reinke just outside the elevator in the North Western yard. Inglis testified that: “Mr Reinke said he was going to Turton after a motor car.” When I talked with him he had unbolted and removed the tool box from the handcar. Witness said he knew that Mr. Reinke ordinarily carried his tools in the box on the handcar. That was the last Mr. Inglis or any other witness saw of Reinke before he started for Turton.
The town of Ferney is on the railroad eight miles south of Groton. About a quarter of a mile south of the station house in Ferney a graveled highway crosses the railroadtrack. No witness saw Mr. Reinke when he left Groton or appears to have seen him as he passed the station at Ferney; but about 10:30 a. m. he was found lying on his back close to the railroad track at said crossing in a helpless condition, and the motor car was off the track, but still on its wheels, some 30 feet south of where Mr. Reinke was lying.
The highway crossing is planked, i. e. there is a plank fastened across the ends of the ties on the outside of each rail, and between the rails other planks are fastened to the ties parallel to the rails. Between the plank next to either rail and the rail itself is a space of some two inches or such a matter in width. This space is to afford room for the flange on car wheels and is known as a “flangeway.”
Mr. Reinke, when found, was still alive and conscious and talked a little. He said there was a small rock in the “flangeway” on the crossing; that he did not see the rock until it was too late to stop the motor car, and when the flange on the motor car wheel struck this rock, the car jumped the track and threw him off the car. Mr. Reinke died from the effects of this accident. His wife, the plaintiff in this action claiming that Mr. Reinke had been her sole means of support, filed a claim for compensation with the Industrial Commissioner. A trial was had by the Commissioner, and Mrs. Reinke was awarded compensation in the sum of $3,000. From such award defendant appealed to the circuit court, where a trial was had on the evidence taken by the Commissioner. The award made by the Commissioner was affirmed by the Court, and from such award defendant appeals to this court.
It is the contention of the appellant that neither the Industrial Commissioner nor the circuit court had jurisdiction of the case. This contention is based upon the theory, first, that at the time of the accident Mr. Reinke was making track inspection on his section of track which was part of an interstate line of transportation and that the Federal Court, under the Employers’ Liability Act, had exclusive jurisdiction of the case-, and, second, that at the time of the accident Mr. Reinke was engaged in moving the motor car in an interstate shipment and for that reason the Federal Court had exclusive jurisdiction of the case. See Federal Employers’ Liability Act, USCA Title 45, Sections 51 to 59, both inclusive. Apr. 22, 1908, c. 149, § 1, 35 Stat. 65.
The facts involved in the first of the two above propositions are covered by Finding of Fact No. 4, which reads as follows: “That some time prior to June 16, 1939, one McDermott, a roadmaster for the defendant and the immediate superior of the deceased, ordered the deceased to take the motor car which he was then using to Turton, South Dakota, which is located upon said branch line, and to leave the same there, and to bring another motor car back to Groton to use in its place; that in the morning of June 3, 1939, the deceased went to the Groton yard of the railway company, there he removed and left beside his tool shed a certain short tool box which he had always carried across the back end of his motor car and which contained the short tools which he had always used when he made track inspections; that the evidence indicates that deceased then started for Turton, South Dakota, with said motor car, the sole purpose of said trip being...
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