Saxton v. El Paso & S. W. R. Co.

• Citation: 21 Ariz. 323,188 P. 257
• Decision Date: 22 March 1920
• Docket Number: Civil 1705
• Parties: HARRIET A. SAXTON, Appellant, v. EL PASO AND SOUTHWESTERN RAILROAD, Appellee
• Court: Arizona Supreme Court

188 P. 257

21 Ariz. 323

HARRIET A. SAXTON, Appellant, v. EL PASO AND SOUTHWESTERN RAILROAD, Appellee

Civil No. 1705

Supreme Court of Arizona

March 22, 1920

APPEAL from a judgment of the Superior Court of the County of Cochise. Alfred C. Lockwood, Judge. Affirmed.

Mr David Benshimol, for Appellant.

Messrs Boyle & Pickett, for Appellee.

OPINION

BAKER, J.

This action was commenced under the state employers' liability law (chapter 6, pars. 3153-3162, Civ. Code 1913) by the plaintiff, Harriet A. Saxton, to recover damages for the death of her son, Roy V. Saxton, alleged to have occurred while he was in the employ of the defendant, El Paso and Southwestern Railroad, as foreman of a gang of men erecting signals along the right of way of the defendant.

A plea in bar to the action was filed which stated that the defendant was a railroad corporation engaged in interstate commerce, and that the decedent was in the employment of the defendant and was engaged in interstate commerce work at the time he sustained the injuries resulting in his death. The court decided that under the facts proven the plea was well founded, and entered a judgment sustaining the plea, from which judgment the plaintiff appeals.

If the defendant was a railroad corporation engaged in interstate commerce and the decedent was in its employment engaged in interstate commerce work, the plaintiff cannot recover under the state employers' liability law. It is well settled that, since Congress, by the act of 1908, took possession of the field of the employers' liability to employees in interstate transportation by rail, all state laws upon the subject are superseded. Employers' Liability Act U.S April 22, 1908, c. 149, 35 Stats. at Large, 65, Comp. Stats § 8657; 8 Fed. Stats. Ann., 2d ed., p. 1208; New York C.R. Co. v. Winfield, 244 U.S. 147, Ann. Cas. 1917D, 1139, L.R.A. 1918C, 439, 61 L.Ed. 1045, 37 S.Ct. 546, 14 N.C.C.A. 680; New York C.R. Co. v. Porter, 249 U.S. 168, 63 L.Ed. 536, 39 S.Ct. 88; Southern Pac. Co. v. Industrial Acc. Com., 251 U.S. 259, 64 L.Ed. 258, 40 S.Ct. 130.

Mr. Justice VAN DE VANTER, delivering the opinion of the court in Wabash R. Co. v. Hayes, 234 U.S. 86, 58 L.Ed. 1226, 34 S.Ct. 729, said:

"Had the injury occurred in interstate commerce, as was alleged, the federal act undoubtedly would have been controlling, and a recovery could not have been had under the common or statute law of the state; in other words, the federal act would have been exclusive in its operation, not merely cumulative." Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 53-55, 38 L.R.A. (N.S.) 44, 56 L.Ed. 327, 32 S.Ct. 169; St. Louis etc. R. Co. v. Seale, 229 U.S. 156-158, Ann. Cas. 1914C, 156, 57 L.Ed. 1129, 33 S.Ct. 651; N.C.R. Co. v. Zachary, 232 U.S. 248, 256, Ann. Cas. 1914C, 159, 58 L.Ed. 591, 34 S.Ct. 305; S.A.L.R. Co. v. Horton, 233 U.S. 492, Ann. Cas. 1915B, 475, L.R.A. 1915C, 1, 58 L.Ed. 1062, 34 S.Ct. 635 (see also, Rose's U.S. Notes).

The court below found the facts to be:

"That defendant is a railroad corporation, and is and was at all of the times mentioned in the plaintiff's complaint a common carrier by railroad, and, as such common carrier, is and was at all of said times engaged in both interstate and intrastate commerce; that Roy V. Saxton was in the employ of defendant on the twenty-seventh day of March, 1916, and on said date was injured and died as a result of injuries received; that at the time of the accident which resulted in his death the said Roy V. Saxton was employed as the foreman of a gang of men engaged in installing electric block signals along the main line of defendant's railroad between Lee Station and Moore's Spur, in Cochise county, Arizona; that said portion of the defendant's main line of railroad between Lee Station and Moore's Spur was then and for a long time past had been constantly used by trains carrying interstate and intrastate commerce; that the purpose of the block signals which the said Roy V. Saxton was then engaged in installing was to protect trains carrying both interstate and intrastate commerce along said portion of the defendant's main line of railroad, and to render the operation of such trains safer and more convenient; that the block signals which the said Roy V. Saxton was engaged in installing were being connected with the defendant's railroad track and with the rails thereof in such manner as to work automatically, and to indicate the presence of trains, broken rails, or other obstructions; that said portion of the defendant's main line of railroad between Lee Station and Moore's Spur was then being equipped for the first time with block signals; that at the time of said accident the installation of said block signals along said portion of the defendant's main line of railroad had not been completed, and said signals were not then in actual operation; that defendant's main line of railroad was not then completed, and said signals did not begin to operate until on or about the first day of June, 1916; that the block signals then being installed along said portion of the defendant's main line of railroad were intended to be used and operated, and were afterwards, to wit, on and after the first day of June, 1916, used and operated as a separate unit or section of block signals; that at the time of the accident in which the said Roy V. Saxton was injured said unit or section of block signals between Lee Station and Moore's Spur had not been attached to or connected with any other unit, section, or system of block signals; that, in order to use and operate said unit or section of block signals between Lee Station and Moore's Spur, it was not necessary that it be attached to or connected with any other unit, section, or system of block signals, but that said unit or section between Lee Station and Moore's Spur could be and was afterwards, to wit, on and after the first day of June, 1916, used and operated as an independent unit or section of block signals; that east of the easternmost point of said unit or section of block signals then being installed, to wit, Moore's Spur, there was not at the time of said accident any block signal system or any part of a system of block signals, either under construction or in operation, in the state of Arizona, on the line of the defendant's railroad, or any block signal system or part of a block signal system leading into the next easternmost state, to wit, New Mexico."

It is conceded that the defendant was a railroad corporation engaged in interstate commerce. But the federal act only applies when both the employer and employee are engaged in interstate commerce. It may be that a railroad company is at all times engaged in interstate commerce, but many of its employees may be, at different times and places, not so engaged or employed. In re Second Employers' Liability Cases, 223 U.S. 1, 49, 38 L.R.A. (N.S.) 44, 56 L.Ed. 327, 32 S.Ct. 169; Illinois Central R. Co. v. Behrens, 233 U.S. 473, Ann. Cas. 1914C, 163, 58 L.Ed. 1051, 34 S.Ct. 646; Wagner v. Chicago etc. R. Co., 200 Ill.App. 305. So the concrete question in the present case is, Did the work in which the decedent was engaged at the time the accident occurred which caused his death constitute employment in interstate commerce? The answer may be found, we think, in the decisions of the federal courts which are controlling in a question of this kind, particularly in Southern Pac. Co. v. Industrial Acc. Com., supra, where the following test is suggested to solve the problem:

"Generally, when applicability of the federal Employers' Liability Act is uncertain, the character of the employment, in relation to commerce, may be adequately tested by inquiring whether, at the time of the injury the employee was engaged in work so closely connected with interstate commerce transportation as practically to be a part of it" -- citing Pederson v. Delaware etc. R. Co., 229 U.S. 146, 151, Ann. Cas. 1914C, 153, 57 L.Ed. 1125, 1127, 33 S.Ct. 648, 3 N.C.C.A. 779; Shanks v. Delaware etc. R. Co., 239 U.S. 556-558, L.R.A. 1916C, 797, 60 L.Ed. 436-438, 36 S.Ct. 188 (see also, Rose's U.S. Notes); New York C.R. Co. v. Porter, supra; Kinzell v. Chicago, M. & St. P.R. Co., 250 U.S. 130-133, 63 L.Ed. 893, 896, 39 S.Ct. 412.

The accident under consideration occurred while the decedent was engaged in installing an electric block signal system along the main line of defendant's railroad. The purpose of the system was to protect trains carrying both interstate and intrastate commerce passing along the defendant's main line of railroad, and to render the operation of such trains safer and more convenient. The system was being attached to or...