Sterner v. Mich. Cent. R. Co.

• Decision Date: 18 June 1925
• Docket Number: No. 47.,47.
• Citation: 231 Mich. 382,204 N.W. 102
• Parties: STERNER v. MICHIGAN CENT. R. CO.
• Court: Michigan Supreme Court

231 Mich. 382

204 N.W. 102

STERNER

v.MICHIGAN CENT. R. CO.

No. 47.

Supreme Court of Michigan.

June 18, 1925.

Error to Circuit Court, Cass County; Glenn E. Warner, Judge.

Action by Arthur C. Sterner against the Michigan Central Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions.

It is the claim of plaintiff that on August 16, 1920, he received an injury to his eye on defendant's grounds at Niles, while he was in its employ and when he was going home to get something to eat, expecting to return and resume his work in about 30 minutes. He describes his work as follows:

‘I was pipe fitter. I repaired pipes on the locomotives as they were repaired. I was busy there all the time.’

As to the service performed by the locomotives he worked on, he says:

‘Q. At that terminal the locomotives come in from the main line of the Michigan Central, do they not? A. Yes, sir.

‘Q. And those locomotives that you were working on were used by the Michigan Central Railroad Company hauling their trains from Niles to Chicago and Detroit? A. The engines that I was working on was simply being repaired for work.

‘Q. I mean when in use they were doing this service? A. Yes, sir; they was used for various things.

‘Q. And those engines were employed to move trains from Chicago to Niles and to Detroit, were they not? A. I presume likely they was.

‘Q. And the terminals at Niles-the company has a large yard there, has it not? A. Yes, sir.

‘Q. And those locomotives would be employed in the work of breaking them up? A. That is, the repair locomotive would.

‘Q. Some of those trains made up would go on to Canada and the east? A. I presume likely.

‘Q. Most all of them had come from Chicago or Michigan City, coming into Niles from the west? A. Yes, sir.

Q. Then likewise trains-were there some trains that came into those yards from the east from New England and Canada that were broken up in those yards? A. Without a doubt they was.

‘Q. And they were propelled by those locomotives that you worked on? A. Them that was repaired, yes.

‘Q. Now that had been your employment from the preceding December up to August 16, 1920, repairing those locomotives-- A. Yes, sir.

‘Q. -that were used as you say? A. Yes, sir.’

One of plaintiff's witnesses testified:

‘I was working on engines there with Mr. Sterner. Those engines draw trains from Chicago into Indiana and elsewhere, through and out of Michigan.

And one of defendant's witnesses says:

‘The business of the plaintiff in August, 1920, was a pipe fitter. A pipe fitter strips pipes off of locomotives, and jackets. His work was confined to pipe fitting mostly. And these (pipes) were on all of the locomotives of the Michigan Central Company. These locomotives were used in the Niles yard and west to Chicago, Joliet, and Argo. They were also used in hauling trains and cars from Chicago and Indiana into Michigan.’

This action was not brought until August 15, 1923. It was insisted by defendant that plaintiff's cause of action, if any ever existed, was under the federal Employers' Liability Act of April 22, 1908 (35 U. S. Stat. 65), as amended by Act April 5, 1910 (36 U. S. Stat. 291), being U. S. Comp. St. §§ 8657-8665, that suit was not seasonably brought under that act, and that no negligence of defendant was established. Defendant moved for a directed verdict on these grounds. The court reserved the question under the Empson Act (Pub. Acts 1915, No. 217), and submitted the case to the jury. He later declined to enter judgment non obstante veredicto, and entered judgment on the verdict for plaintiff for substantial damages.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Gore & Harvey, of Benton Harbor (Frank E. Robson and J. W. Dohany, both of Detroit, of counsel), for appellant.

Thomas J. Cavanaugh, of Paw Paw, and Edwin J. Donahue, of Niles, for appellee.

FELLOWS, J. (after stating the facts as above).

The testimony, and we have quoted all of it on the subject, clearly establishes that plaintiff, at the time he received the injury, was employed repairing locomotives used in interstate commerce. If he was within the purview of the federal act, his action was not seasonably brought. Bement v. Grand Rapids, etc., R. Co., 194 Mich. 64, 160 N. W. 424, L. R. A. 1917E, 322, where the appropriate provision of the act is quoted. If the federal act applies, it is exclusive, as the authorities we shall presently cite demonstrate. Numerous cases involving the federal act have been before this court. We shall first examine some of them. In Gaines v. Detroit, etc., R. Co., 181 Mich. 376, 148 N. W. 397, the plaintiff received his injuries while at work repairing a car used in interstate commerce. It was held that the work plaintiff was doing when he received his injuries was a part of interstate commerce and his remedy under the federal act, and Pedersen v. Railroad, Co., 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, was cited. In the Pedersen Case, it was said:

‘That the defendant was engaged in interstate commerce is conceded, and so we are only concerned with the nature of the work in which the plaintiff was employed at the time of his injury. Among the questions which naturally arise in this connection are these: Was that 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 railroad 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 interestate commerce in which the carrier is engaged? See McCall v. California, 136 U. S. 104, 109, 111;Second Employers' Liability Cases supra, 6, 59; Zikos v. Oregon R. & Navigation Co., 179 Fed. Rep. 893, 897, 898; Central R. Co. of N. J. v. Colasurdo, 192 Fed. Rep. 901; Darr v. Baltimore & O. R. Co., 197 Fed. Rep. 665; Northern Pacific Ry. Co. v. Maerkl, 198 Fed. Rep. 1. 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.'

In Sims v. Minneapolis, etc., R. Co., 196 Mich. 114, 162 N. W. 988, plaintiff was engaged as an assistant car repairer in defendant's shop. This court held that, under the federal act, the defense of assumed risk was available, and that a verdict should have been directed on that ground. In the recent case of Britton v. Wabash Ry. Co. (Mich.) 203 N. W. 484, plaintiff was engaged in defendant's machine shop at Montpelier, Ohio; he worked repairing engines. It was held that he was engaged in interstate commerce and defendant was liable under the federal act. In Fernette v. Pere Marquette R. Co., 175 Mich. 653 (on rehearing 672), 141 N. W. 1084,144 N. W. 834, the train was an intrastate train, but it contained two cars carrying merchandise billed to points outside the state. It was held that this impressed an interstate character on the train, and that the federal act applied and was exclusive. In other cases in this court it has been held that employés who were not engaged directly in the movement of interstate commerce, but whose work concenred the instrumentalities necessarily a part of such movement, were engaged in interstate commerce and under the federal act. In Collins v. Michigan Cent. R. Co., 193 Mich. 303, 159 N. W. 535, a lineman stringing wires; in Cholerton v. Detroit, etc., Ry. Co., 199 Mich. 647, 165 N. W. 606, an employé in the bonding crew of an intrastate interurban road which carried interstate shipments; in Guy v. Cincinnati Northern R. Co., 198 Mich. 140, 166 N. W. 667, an employé engaged in coaling and placing water in tanks of engines engaged in interstate commerce; in Jorgensen v. Grand Rapids, etc., R. Co., 189 Mich. 537, 155 N. W. 535, a fireman on a work train; and in Chapman v. Ann Arbor R. Co., 196 Mich. 671, 163 N. W. 107, an employé engaged in unloading bridge timbers.

After the decisions in New York Cent. R. Co. v. Winfield, 244 U. S. 147, 37 S. Ct. 546, 61 L. Ed. 1045, L. R. A. 1913C, 439, Ann. Cas. 1917D, 1139, and Erie R. Co. v. Winfield, 244 U. S. 170, 37 S. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662, this court was called upon to determine whether our Workmen's Compensation Act (Pub. Acts Ex. Sess. 1912, No. 10) applied to employés in interstate commerce. Carey v. Grand Trunk Western R. Co., 200 Mich. 12, 166 N. W. 492. Speaking for the court, and having reference to the New York Central Case, it was said by Justice Stone:

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