Stavros v. Chicago, Milwaukee & St. Paul Railway Co.

• Decision Date: 27 January 1922
• Docket Number: 22,649
• Citation: 186 N.W. 942,151 Minn. 251
• Parties: JAMES STAVROS v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY
• Court: Minnesota Supreme Court

186 N.W. 942

151 Minn. 251

JAMES STAVROS v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY

No. 22,649

Supreme Court of Minnesota

January 27, 1922

Action in the district court for Ramsey county to recover $5,250 for injuries received while in defendant's employ. The case was tried before Dickson, J., who when plaintiff rested granted defendant's motion to dismiss the action. From an order denying his motion for a new trial, plaintiff appealed. Reversed.

SYLLABUS

Railway -- ash-pit workers engaged in interstate commerce.

1. An ash-pit or cinder pit, where are dumped the ashes and cinders from engines engaged both in intrastate and interstate commerce and which is a necessary facility in the operation of the railway, is also a facility or instrumentality used in interstate commerce, so that persons engaged in cleaning out or emptying such pit should be held engaged in work in furtherance of such commerce.

Question for jury.

2. The evidence is held to make a prima facie case for the jury whether plaintiff was so engaged when hurled into the pit by a locomotive, negligently run against him, as he was about to go into it as one of a crew of men set to work to clean it out.

Barton & Kinkead, for appellant.

F. W Root & C. W. Wright, for respondents.

OPINION

HOLT, J.

Aberdeen South Dakota, is a division point on the Chicago, Milwaukee & St. Paul Railway system, at the time hereinafter referred to, operated by Walker D. Hines as Director General of Railroads. Plaintiff had been employed for several months, prior to November 28, 1919, as a section hand, in an extra crew or gang, maintaining the tracks of said railroad near Aberdeen, and, for about one month prior to that date, in raising, repairing and installing tracks in the yard in that city. His crew did not work in the forenoon of November 28, but at about 1 o'clock in the afternoon, he and his fellows were summoned by the foreman from their bunk car in the yard to go with him to clean out the cinder or ash-pit located west of the roundhouse. Between the latter and the ash-pit is a turntable. Double tracks run over the turntable to the ash-pit. As plaintiff came within six feet of the ash-pit, and when some of his crew were already in the pit engaged at their task, a locomotive, backing in upon the pit without a lookout in front and without ringing the bell or giving any other signal, struck plaintiff from behind, hurled him into the pit and inflicted the injuries for which he sued. It was conceded that the ash-pit or cinder-pit was a part of the line of railroad owned at the time by the Chicago, Milwaukee & St. Paul Railway Company and operated by the government, and that ashes and fires from both interstate and intrastate engines were dumped therein; that all engines that stopped on the Aberdeen division engaged both in intrastate and interstate commerce, exclusively, stopped on the pit and were cleaned there. If plaintiff when injured was not engaged in interstate commerce, it was conceded there could be no recovery in this action, for then his remedy was under the state workmen's compensation statute. When plaintiff rested, the case was dismissed, and the appeal is from the order denying a new trial.

The learned trial court came to the conclusion that cleaning out this pit was not a work connected with or related to interstate commerce. He said: "The cinders were not dumped into the pit in the course of commerce or transportation, though they may have been the result of it. But the engines were dumped and cleaned after their use in transportation or commerce was finished." This view seems to us too narrow.

Statutes and ordinary care require that ashes and cinders be not allowed to drop from the engines as they are operated along the railroad line. The ash receptacle must not allow live cinders or coal to escape and spread fire and destruction. Some convenient place must be provided for their safe dumping. Had the pit been placed at such a place that, as the engines came in attached to a train carrying interstate commerce, they would stop over the pit and have the ash-pan emptied, there could be no question but that one in or near the pit either to dump the ash container of the engine or to shovel out and clean the pit would be engaged in furthering interstate commerce. That, for the sake of convenience, this pit, designed and used for the same purpose, is placed where it is, instead of under the main line, should not make a distinction in law as to the service in which the workman is engaged while cleaning it. At least, such appears to us to be the law until otherwise determined by the Supreme Court of the United States, the final authority in all disputes concerning the application of the Federal Employers Liability Act.

The courts of Kentucky and New Jersey have reached a conclusion wholly out of harmony with that of the court below, holding that an employe engaged in cleaning or emptying an ash-pit, designed for the use and used in the manner here shown, is furthering interstate commerce. Chief Justice Gummere in Grybowski v. Erie R. Co. 88 N.J. Law, 1, 3, 95 A. 764, said: "The proofs show that the ash-pit was a part of the plant of the defendant company, that it was a necessary part of that plant, and that it was used both in interstate and intrastate commerce. The keeping of it clean, and thereby maintaining its effectiveness, was required equally for both kinds of commerce, just as the keeping in repair of tracks and bridges which are used for both kinds of commerce is a necessary incident to each of them." This decision was affirmed by the unanimous vote of the court of appeals, 89 N.J. Law, 361, 98 A. 1085, the opinion of Chief Justice Gummere being adopted as the opinion of the court.

In Cincinnati, N.O. & T.P. Ry. Co. v. Clarke, 169 Ky. 662, 185 S.W. 94, the ash-pit, as to location and use, is set forth much the same as the evidence reveals the situation in the instant case, the court saying [pp. 667, 668]: "It was situated under one of the tracks of appellant, and was an instrumentality designed, constructed and used by the carrier for the purpose of ridding the engines used in its operations of the ashes produced by the materials used in the engines to make the power, which was necessary to propel them. It was daily and at night used for that purpose by its engines, which were engaged in interstate commerce. The pit was a useful and necessary instrumentality in the operation of its engines engaged in interstate commerce. The ashes must necessarily be taken from the engines and when dropped into the pit, the ashes must be thrown from the pit to keep it in condition and repair to do the service for which it was used and designed."

The cases of Erie R. Co. v. Collins, 253 U.S. 77, 40 S.Ct. 450, 64 L.Ed. 790, and Erie R. Co. v. Szary, 253 U.S. 86, 40 S.Ct. 454, 64 L.Ed. 794, seem to point to the correctness of the decisions of the two state courts above cited. In the Szary case the employe was injured while carrying ashes to an ash-pit from stoves used in drying sand in a small structure standing in the yards of the railroad company, the sand being used for engines engaged in interstate and intrastate commerce indiscriminately. The appellant, citing Chicago, B. & Q.R. Co. v Harrington, 241 U.S. 177, 36 S.Ct. 517, 60 L.Ed. 941; Lehigh Valley R. Co. v. Barlow, 244 U.S. 183, 37 S.Ct. 515, 61 L.Ed. 1070; Minneapolis & St. L.R. Co. v. Winters, 242 U.S. 353, 37 S.Ct. 170, 61 L.Ed. 358, Ann. Cas. 1918B, 54; Shanks v. Delaware, L. & W.R. Co. 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A. 1916C, 797; Delaware, L. & W.R. Co. v. Yurkonis, 238 U.S. 439; 35 S.Ct. 902, 59 L.Ed. 1397; Illinois Cent. R. Co. v. Cousins, 241 U.S. 641, 36 S.Ct. 446, 60 L.Ed. 1216; Baltimore & O.R. Co. v. Branson, 242 U.S. 623, 37 S.Ct. 244, 61 L.Ed. 534; and Illinois Cent. R. Co. v. Behrens, 233 U.S. 473, 34 Sup. Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163, argued in this manner: "It would seem that the nearest the plaintiff came to being engaged in interstate...