Thomson v. Columbia & P. S. R. Co.

• Decision Date: 09 May 1913
• Docket Number: 2,413.
• Citation: 205 F. 203
• Court: U.S. District Court — Western District of Washington
• Parties: THOMSON et ux. v. COLUMBIA & P.S.R. CO.

205 F. 203

THOMSON et ux. v. COLUMBIA & P.S.R. CO.

No. 2,413.

United States District Court, W.D. Washington, Northern Division.

May 9, 1913

O. E Sauter and Edward Judd, both of Seattle, Wash., for plaintiffs.

Farrell Kane & Stratton, of Seattle, Wash., for defendant.

CUSHMAN District Judge.

This cause is now before the court upon defendant's demurrer to plaintiffs' amended complaint. The suit is one by the parents of Walter Gilbert Thomson, a 'single man' (presumably a bachelor), alleged to have been killed through the negligence of the defendant while in its employ. It is alleged:

'That on the 26th day of November, 1911, the defendant was the owner of and engaged in operating a certain railroad in said county of King, upon which railroad and as a part of the same there was a certain bridge located in said county of King upon the right of way of the defendant, and crossing a certain river in said county known as the Cedar river. That said bridge was what was known as a truss bridge, and extended from one bank to the other bank of said Cedar river, resting upon piers at each end of said bridge, and on the top of said bridge were laid the steel tracks of said railroad. That a short time prior to the day last mentioned, the waters of the Cedar river arose in a flood and washed away the foundation of one of the piers supporting said bridge, and caused one end of said bridge to sink and fall for a distance. That correct pictures of the appearance of said bridge after one end of the same had sunk as aforesaid are attached to the original complaint herein and marked Exhibits A and B, and hereby made a part of this amended complaint.

' * * * That at the time and place last mentioned one Walter Gilbert Thomson was in the employ of the defendant as a bridge carpenter, and was engaged in working as a bridge carpenter in connection with the repairing and reconstructing of said bridge under the direction and supervision of said superintendent of bridge work and said roadmaster. That there was also engaged in said work a foreman, directing the work of the men who were engaged in doing the work in connection with said bridge, which foreman was obeying the immediate orders and instructions of said superintendent of bridge work and said roadmaster, and the said Thomson was working under the immediate direction of said foreman. That the said Thomson and several other men in the employ of the defendant, acting under the immediate direction of said foreman, were engaged in removing certain logs and timber which was jammed against the said bridge. * * *

'That at the time of the collapse of said bridge, resulting in the death of said Walter Gilbert Thomson as above described, the said defendant and all of their agents and employes, including the said Walter Gilbert Thomson, were engaged in carrying on and participating in interstate and foreign commerce in such a manner that their mutual connection with intrastate work was not separable and distinguishable from interstate or foreign commerce. That the plaintiffs are entitled to bring this action under the act of Congress of the United States regulating the liability to their employes of common carriers engaged in interstate and foreign commerce.'

The defendant, demurring, contends that the deceased was not a laborer engaged or employed in interstate commerce at the time he was killed, within section 1 of the act of April 22, 1908 (35 Stat. 65, c. 149 (U.S. Comp. St. Supp. 1911, p. 1322)).

The allegation in the complaint that the intrastate and foreign commerce in which the defendant and the deceased were engaged in carrying on were of such a character that the 'mutual connection with intrastate work was not separable and distinguishable from interstate or foreign commerce' was, evidently, inserted to take the case out of section 18 of the Washington State Compensation Act. Laws 1911, c. 74.

Plaintiffs rely upon the following authorities: Second Employers' Liability Cases (Mondou v. N.Y., N.H. & H.R Co.) 223 U.S. 1, 32 Sup.Ct. 169, 56 L.Ed. 327, 38 L.R.A. (N.S.) 44; Darr v. Baltimore & O.R. Co. (D.C.) 197 F. 665; Zikos v. Ore. R. & N. Co. (C.C.) 179 F. 893; Colasurdo v. Central R. Co. (C.C.) 180 F. 832, affirmed (C.C.A.) 192 F. 901; Behrens v. Illinois Central R. Co. (D.C.) 192 F. 581; Johnson v. Great Northern R. Co., 178 F. 643, 102 C.C.A. 89; Freeman v. Powell (Tex....