Snyder v. Great Northern Ry. Co.

• Decision Date: 10 November 1915
• Docket Number: 12527.
• Parties: SNYDER v. GREAT NORTHERN RY. CO.
• Court: Washington Supreme Court

152 P. 703

88 Wash. 49

SNYDER v. GREAT NORTHERN RY. CO.

No. 12527.

Supreme Court of Washington

November 10, 1915

Department 1. Appeal from Superior Court, Spokane County.

Action by Martin Snyder against the Great Northern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Charles S. Albert and Thomas Balmer, both of Spokane, for appellant.

F. A McMaster, of Spokane, for respondent.

MOUNT J.

This action was brought in the superior court for Spokane county under the Employers' Liability Act of Congress to recover for personal injuries alleged to have been sustained by the plaintiff in jumping from a locomotive which had left the rails upon a side track in the yards at Spokane. The trial of the case resulted in a verdict in favor of the plaintiff for $9,560. Immediately upon the return of the verdict, the defendant filed a motion for judgment notwithstanding the verdict and for a new trial upon all the statutory grounds. The court made a conditional order for a new trial unless the plaintiff would remit $3,000 from the verdict. This was done and the motions for a new trial and for judgment non obstante were denied. The defendant had appealed from the reduced judgment.

It appears that the plaintiff was employed by the defendant as an engineer upon a switch engine. His duties as such engineer were to switch cars in the yards at Spokane and Hillyard, a suburb of Spokane, about four miles distant. On the morning of April 2, 1912, the plaintiff, with a crew of men, was hauling 21 freight cars from Hillyard on a side track into the yards at Spokane. When in the Spokane yards, while running from four to eight miles per hour, at or near a switch leading into the Dean Lumber Company's yard, the engine left the rails and plowed along upon the ties for a short distance, when the engineer, thinking that the engine was about to tip over, jumped, and was bruised upon his back.

At the time the engine was derailed there were several cars in the train that were loaded with interstate freight. The padlock upon the switch at or near which the engine left the track was out of order so that it would not lock. There was no other defect in the switch when the engine left the rails at or near the switch. The front trucks of the first car following the engine also left the rails. The rear trucks of that car, and all the other cars, remained upon the track.

The court instructed the jury to the effect that, if they found that the plaintiff's usual employment was to switch cars carrying interstate freight and other cars carrying intrastate freight, and that the plaintiff was required to haul these indiscriminately without any control in the matter, that, in law, would constitute him an employé engaged in interstate commerce. It is argued by the appellant that this instruction was erroneous under the ruling of the Supreme Court of the United States in the case of Illinois Cent. R. Co. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163. That was a case where the intestate was in the service of the railroad company as a member of a crew attached to a switch engine operated exclusively within the city of New Orleans. He was the fireman, and came to his death while at his post of duty, through a head-on collision. At the time of the collision the crew was moving several cars loaded with freight which was wholly intrastate. Upon completing that movement it was to have gathered up and taken to other points several other cars, as a step or link in their transportation to various destinations within and without the state. The question of law was whether, upon these facts, it can be said that the intestate at the time of his fatal injury was employed in interstate commerce, within the meaning of the Employers' Liability Act. As we read the decision in that case, it was held that there could be no recovery, because the intestate at the time of his death was engaged in hauling cars loaded with freight which was wholly intrastate, and not interstate. It was said in that case, quoting from another case:

'There can be no doubt that a right of recovery thereunder arises only where the injury is suffered while the carrier is engaged in interstate commerce and while the employé is employed by the carrier in such commerce.' * * * 'The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?"

After citing a number of authorities, the court continues:

'Here at the time of the fatal injury the intestate was engaged in moving several cars, all loaded with intrastate freight, from one part of the city to another. That was not a service in interstate commerce, and so the injury and resulting death were not within the statute.'

In this case it was shown that the plaintiff at the time of the injury was hauling cars part of which were loaded with intrastate freight and part with interstate freight. We are of the opinion, therefore, that under the rule announced by the Supreme Court of the United States in the case cited, the plaintiff in this case was engaged in interstate commerce at the time of the injury, and that the instruction of the trial court upon this question was correct.

The appellant further argues at length that a verdict should have been directed for the defendant, and that the motion for a judgment notwithstanding the verdict should have been granted, for the reason that there was no evidence upon which the jury could predicate negligence on the part of the appellant, or could find that the defective condition of the switch caused the injury. It was shown that the padlock which locked the switch was not locked, or could not be locked. The padlock was out of order. The evidence shows conclusively that the switch at or near which the engine left the rails was a standard switch, and that the switch block at the side of the track was a heavy castiron fixture. Near the top of this fixture was a collar in which were slots. The handle used to turn the switch was a heavy iron handle, which, when the switch was set properly, fell into a slot, and by placing the hasp of the padlock in a hole in this handle, it was impossible to raise the handle or...