Ross v. Sheldon

• Decision Date: 26 October 1915
• Docket Number: 29952
• Citation: 154 N.W. 499,176 Iowa 618
• Parties: C. E. ROSS, Administrator, Appellant, v. PARLEY SHELDON et al., Receivers, Appellees
• Court: Iowa Supreme Court

154 N.W. 499

176 Iowa 618

C. E. ROSS, Administrator, Appellant, v. PARLEY SHELDON et al., Receivers, Appellees

No. 29952

Supreme Court of Iowa, Des Moines

October 26, 1915

REHEARING DENIED WEDNESDAY, JUNE 28, 1916.

Appeal from Story District Court.--W. S. AYRES, Judge.

ACTION by an administrator to recover damages for the death of the intestate decedent. At the close of the evidence, there was a directed verdict for the defendant. The ground of such direction was that the decedent and the defendant were engaged in interstate commerce at the time of the injury, the petition declaring upon a cause of action under the state law and not under the Federal Act. The plaintiff appeals.--Modified and Affirmed.

Modified and Affirmed.

C. W E. Snyder and Charles F. Maxwell, for appellant.

Ed McCall, S. R. Dyer, J. W. Jordan and W. R. Dyer, for appellees.

EVANS, C. J. LADD, GAYNOR, PRESTON and SALINGER, JJ., concur. DEEMER and WEAVER, JJ., dissent.

OPINION

EVANS, C. J.

I.

The plaintiff brought his action under the state law, claiming damages to the estate of the deceased for the wrongful death. Among other defenses, the defendant pleaded that, at the time of the accident which resulted in the death of the decedent, the decedent was engaged as an employee of the defendant in interstate commerce, and that the plaintiff's rights, if any, were covered by the Federal Act applicable in such a case. The plaintiff adhered to his petition. At the close of the evidence, various grounds were urged by the defendant in support of the motion for a directed verdict. Inasmuch as the motion was sustained upon the ground already indicated, we shall have no occasion to consider any other question upon this record.

The material facts pertaining to the question whether the employment of the decedent at the time of his injury was concerned with interstate commerce are not in dispute. The line of the defendant railway was wholly within the state of Iowa. It operated no trains outside of the state of Iowa. It was an interurban electric line extending from Des Moines to Fort Dodge. The decedent was a regular lineman. He was engaged in the duties of a lineman at the time of his fatal injury. It appears, however, that, by means of connections with other lines of railway, more than 80 per cent of the business of the interurban line was interstate business. It received freight from connecting lines originating without the state and destined to points upon the line of the defendant. The defendant railway was therefore engaged in interstate commerce. It was thus engaged upon the day of the accident. Some point is urged by the appellant that it does not appear that it was thus engaged at the moment of the injury. The evidence does not deal in detail with the business actually moving at the moment of the injury. It does show that a large amount of interstate business was done on that date. If it be material to identify the business in progress at the moment of the injury as interstate business, we think no other inference would be permissible under the facts shown.

Was the employment of the decedent connected with interstate commerce? The line of defendants' railway was operated under electric power. Alongside the railway track was its line of poles, all carrying cross-arms. Upon these cross-arms were extended various wires, including telegraph, block signal, power, and feed wires. The decedent was engaged in putting additional cross-arms upon the poles. The intended use of such additional cross-arms was that the signal wire theretofore used should be transferred thereto, and that five or six additional signal wires should be carried thereon. The single signal wire was deemed insufficient for the use of the company. The signal system had been operated by hand. It was now in contemplation to operate the same by an "automatic," system which would be more efficient than the single wire and the "hand" system. While at work in nailing a cross-arm upon a pole in pursuance of this purpose, the decedent was killed by contact with some of the wires upon the other cross-arms. The contention for the appellee is that the pole and cross-arm and signal wires upon which he was working and in contact with which he met his death were a part of the necessary instrumentalities of defendants' interstate commerce, and that the injury to the decedent occurred while he was engaged in the work of repair and maintenance. If this is a proper characterization of the work in which the decedent was engaged, then it is quite settled that the plaintiff's case is covered by the provisions of the Federal Act. On this question, we need look no further for authority than the case of Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146, 57 L.Ed. 1125, 33 S.Ct. 648. The evidence in that case was stated in the opinion as follows:

"The evidence, in that view of it which must be taken here, was to the following effect: The defendant was operating a railroad for the transportation of passengers and freight in interstate and intrastate commerce, and the plaintiff was an iron worker employed by the defendant in the alteration and repair of some of its bridges and tracks at or near Hoboken, New Jersey. On the afternoon of his injury the plaintiff and another employee, acting under the direction of their foreman, were carrying from a tool car to a bridge, known as the Duffield bridge, some bolts or rivets which were to be used by them that night or very early the next morning in 'repairing that bridge,' the repair to consist in taking out an existing girder and inserting a new one. The bridge could be reached only by passing over an intervening temporary bridge at James Avenue. These bridges were being regularly used in both interstate and intrastate commerce. While the plaintiff was carrying a sack of bolts or rivets over the James Avenue bridge, he was run down and injured by an intrastate passenger train, of the approach of which its engineer negligently failed to give any warning."

The following discussion in the opinion is quite relevant to the case before us:

"Among the questions which naturally arise in this connection are these: Was the work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroads as are engines and cars; and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition, and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct 'any defect or insufficiency . . . in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment' used in interstate commerce. But independently of the statute, we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements, and the nature of each determined regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged? . . . Of course, we are not here concerned with the construction of tracks, bridges, engines or cars which have not as yet become instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities and during their use as such. True, a track or bridge may be used in both interstate and intrastate commerce, but when it is so used it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce. The point is made that the plaintiff was not, at the time of his injury, engaged in removing the old girder and inserting the new one, but was merely carrying to the place where that work was to be done some of the materials to be used therein. We think there is no merit in this. It was necessary to the repair of the bridge that the materials be at hand, and the act of taking them there was a part of that work. In other words, it was a minor task which was essentially a part of the larger one, as is the case when an engineer takes his engine from the round-house to the track on which are the cars he is to haul in interstate commerce."

There is no appropriate reason why we should attempt to add argument to the foregoing. Our concern in this class of cases is to follow carefully the law laid down by the Supreme Court of the United States as the one source of judicial authority thereon.

The contention of the appellant is that the work in which the decedent was engaged was not repair or maintenance work, but was new construction work. That there may be a distinction between repair work and construction work is recognized in the Pedersen case, supra. The argument for appellant is that the lines and instrumentalities of the defendants were complete, and, as such, in repair without the addition of new cross-arms, and without the...