Slatinka v. U.S. Ry. Admin.

• Decision Date: 09 May 1922
• Docket Number: No. 34353.,34353.
• Citation: 188 N.W. 20,194 Iowa 159
• Parties: SLATINKA v. UNITED STATES RY. ADMINISTRATION ET AL.
• Court: Iowa Supreme Court

194 Iowa 159

188 N.W. 20

SLATINKA

v.UNITED STATES RY. ADMINISTRATION ET AL.

No. 34353.

Supreme Court of Iowa.

May 9, 1922.

Appeal from District Court, Benton County; James W. Willett, Judge.

Action at law for damages for injury to plaintiff's intestate, who was an employé of the Chicago, Rock Island & Pacific Railway Company. At the time of the injury the railroad was being operated by the United States Railway Administration. Verdict for plaintiff, and the defendant appeals. Affirmed.J. G. Gamble and R. L. Read, both of Des Moines, and G. W. Burnham, of Vinton, for appellants.

Thomas & Thomas, of Traer, and Nichols & Nichols, of Vinton, for appellee.

FAVILLE, J.

The Chicago, Rock Island & Pacific Railway Company operates a line of railroad extending from Chicago to certain points in Minnesota and South Dakota, and passing through the town of Traer, in Tama county, Iowa. At said town of Traer the railway company has established a coaling station for the purpose of supplying coal to engines operated on said railway. This is arranged in such a way that the cars that are filled with coal are placed over a pit which is practically 20 feet long and 15 feet wide, and the sides of which slope to a point at the bottom. When a car is placed over this pit for unloading, a lever is operated on the car which permits the hoppers in the bottom of the car to fall down and drop the coal from the car into the pit. There is an iron grate over the pit, and, when the coal is dumped from the car in the manner described, it falls on this grate which catches and holds the larger lumps of coal. After the coal passes through the grate into the pit, it is elevated into the storage bins by a bucket operated by a gasoline engine. It is thereafter drawn from the storage bins as needed, by a form of conveyor which carries the coal from the bin to the tender of the engine. The capacity of the coaling station is about 80 tons, and during the winter time about 1,800 tons of coal are handled each month at the station.

Appellee's intestate was employed as an assistant or helper to the man in charge of this coaling station. The general nature of his business was that of moving cars, dumping the coal into the coal pit, breaking up the large lumps of coal that lodged on the grate, winding up the dumps or hoppers on the cars, cleaning up the scattered coal, and in general doing the necessary things in connection with the unloading of coal from the cars in which it had been transported and the delivery of the same into the storage bins from which it was subsequently placed in the tenders of the engines as needed. The work of delivering the coal from the storage bin to the tender of an engine is by means of a conveyor, and is done by the fireman of the engine receiving the coal. It appears from the evidence that a carload of coal will not always go into the pit, and also that when coal becomes lodged on the grate it is necessary for an employé to go upon the grate and break the coal into smaller lumps, so it will pass through the grate into the pit. The appellee's intestate usually did this work. At the time of the injury a freight train was switching in the yards. A coal car had been placed over the pit, and appellee's intestate was engaged in the work of breaking the lumps of coal lodged on the grate when the car was moved by the freight engine, and the intestate received the injury which resulted in his death a few hours later. The testimony showed that the engines of trains engaged in both interstate and intrastate commerce regularly received coal at this station. The uncontradicted evidence established the foregoing state of facts.

[1] I. Appellee's action was brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and it is the appellant's contention that the decedent was not engaged in interstate commerce at the time of his injury, and that the appellant is not liable under the said act. The question of whether an employé of a railroad company that carries on both interstate and intrastate commerce is, by virtue of the character of his particular employment, engaged in interstate commerce at the time of an injury, has often been before the courts, both federal and state. The general rule on this subject is that, in order for an employé to come within the terms and provisions of the federal act, he must at the time of the injury be engaged in interstate transportation, or in work so closely related to it as to be practically a part of it. This general rule has been announced by the Supreme Court of the United States and by this court. Pedersen v. D., L. & W. Ry. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153;Shanks v. D., L. & W. Ry. Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797. The difficulty lies in the application of this general rule to the facts of any particular case. The authorities are not in harmony, nor are they consistent. We shall review a few of them as illustrating the holdings of the courts.

The leading federal case on the subject, and the one referred to in nearly every decision, state or federal that has passed upon the question, is Pedersen v. D., L. & W. Ry. Co., supra. The case was decided in May, 1913, by a divided court. The plaintiff in said action was engaged in repairing a bridge over which defendant's trains passed in both interstate and intrastate commerce. While carrying a sack of bolts to the bridge he was injured by a train. The court said:

“We are of opinion that the work of keeping such instrumentality in a proper state of repair while thus used is so closely related to such [interstate] commerce as to be in practice and legal contemplation a part of it.”

In Norfolk & West. Ry. Co. v. Earnest, 229 U. S. 114, 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172, the plaintiff was engaged in piloting a locomotive through several switches to a main track where it was to be attached to an interstate train, and was held to be engaged in interstate commerce.

In St. L., S. F. & T. Ry. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156, the plaintiff's intestate was a clerk on his way through a railroad yard to meet an inbound interstate freight train and to mark the cars so that the switching crew would know what to do with them when breaking up the train, and while so doing was injured and was held to be engaged in interstate commerce.

In N. C. R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159, it was held that a fireman in inspecting, oiling, firing, and preparing an engine, was performing acts as a part of interstate commerce, although the train to be drawn by the engine, containing the cars to be moved in interstate commerce had not yet been coupled up.

In D., L. & W. Ry. Co. v. Yurkonis, 238 U. S. 439, 35 Sup. Ct. 902, 59 L. Ed. 1397, it appeared that the railroad company owned a coal mine. Plaintiff was employed as a miner, and was injured while at work in the mine. The coal was used in interstate commerce. The court said:

“The mere fact that the coal might be or was intended to be used in the conduct of interstate commerce after the same was mined and transported did not make the injury one received by the plaintiff while he was engaged in interstate commerce.”

In C., B. & Q. R. Co. v. Harrington, 241 U. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941, a switching crew was engaged in switching coal which had been standing on a storage track for a week or more, to a coal shed where it was to be placed in bins and supplied as needed for engines engaged in both kinds of traffic. Plaintiff's duty “was solely in connection with the removal of the coal from the storage tracks to the coal shed,” and it was held that plaintiff was not in interstate commerce.

In Shanks v. D., L. & W. Ry. Co., supra, the plaintiff was employed in a machine shop for the repairing of locomotives. On the day of the injury he was engaged solely in taking down and putting into a new location an overhead countershaft, a heavy shop fixture, through which power was communicated to some of the machinery used in repair work. He was held not to be engaged in interstate commerce, and the court said:

“The true test of employment in such commerce in the sense intended is, Was the employé 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 M. & St. L. R. Co. v. Winters, 242 U. S. 353, 37 Sup. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54, the plaintiff was making repairs upon an engine which had been used in hauling freight trains in both interstate and intrastate commerce. The last two times the engine had been used in intrastate commerce. It was held that an engine is not permanently devoted to any kind of traffic, and it did not appear that it was destined to anything more definite than such business as it might be needed for. This was insufficient to show that the plaintiff was engaged in interstate commerce.

In Lehigh Valley R. Co. v. Barlow, 244 U. S. 183, 37 Sup. Ct. 515, 61 L. Ed. 1070, the plaintiff was a member of a switching crew, and was assisting in placing cars containing supply coal for the railroad on an unloading trestle within its yards. The cars had been brought from without the state, and had remained upon the sidings and switches from 17 to 24 days before being removed to the trestle. It was held that the switching crew was not engaged in interstate commerce.

In P., B. & W. R. Co. v. Smith, 250 U. S. 101, 39 Sup. Ct. 396, 63 L. Ed. 869, an employé of an interstate railroad was employed to cook for a gang of bridge carpenters, and was injured while in a car on a side track in the performance of his duties. He was held to be engaged in interstate commerce within the meaning of the federal Employers' Liability Act.

In Erie R. Co. v. Collins, 253 U. S. 77, 40 Sup. Ct. 450, 64 L. Ed. 790, the...