Towns v. Monongahela Ry. Co

• Decision Date: 15 May 1928
• Docket Number: (No. 6134.)
• Citation: 144 S.E. 289
• Court: West Virginia Supreme Court
• Parties: TOWNS. v. MONONGAHELA RY. CO.

144 S.E. 289

TOWNS.

v.MONONGAHELA RY. CO.

(No. 6134.)

(Supreme Court of Appeals of West Virginia.

May 15, 1928.

Rehearing Denied Sept. 18, 1928.

(Syllabus by the Court.)

Error to Circuit Court, Marion County.

Action by John A. Towns against the Monongahela Railway Company. Judgment for plaintiff, and defendant brings error. Judgment reversed, verdict set aside, and a new trial ordered.

Rollo J. Conley, of Fairmont, for plaintiff in error.

Victor H. Shaw, of Fairmont, for defendant in error.

LIVELY, J. Plaintiff obtained a verdict and judgment of $5,000 for personal injuries received as an employee of defendant, and the latter prosecutes error.

There is no material controversy of fact. The controlling question on this writ is whether plaintiff was engaged in intrastate or interstate service at the time he received his injury, and therefore whether the state or federal law applies. Plaintiff contended that he was engaged in interstate service and offered an instruction to that effect, while defendant contended that plaintiff was engaged by it in intrastate service and offered an instruction to that effect; both of these instructions were refused, and the court submitted to the jury the question whether plaintiff was engaged in one or the other service at the time of the injury.

Plaintiff was employed as a section hand on section No. 17, Sayre being the section foreman. Some few days prior to the accident, this section crew had been at work constructing a side or spur track designed to serve a customer of the railroad, the Domestic Coke Plant, which was located on section 18, and a short distance from where Sayre's section 17 ended. This switch or side track was under the process of construction and had not yet been connected with the main line of defendant company. But when connected, the product from the Domestic Coke Plant would be transported in both interstate and intrastate traffic, as defendant's railroad extended into Pennsylvania from Marion county, W. Va. (where the accident occurred), and connected with the Pennsylvania System of Railroads at a point in Pennsylvania. On the morning of the accident the section crew, of which plaintiff was a member, congregated at a place called Radcliff, about two and three-quarter miles from the uncompleted switch, and in the early morning started from Radcliff to the uncompleted switch to continue their labors thereon. This crew consisted of five section "hands" or section men, including plaintiff, and the section foreman, Sayre. They started on a hand car propelled by hand levers operated by the men on the car. After traveling from Radcliff about one-half mile, the crew repaired a small piece of the main line track, which work consumed about two hours' time, thence they proceeded on the car to the work on the switch. Plaintiff was helping to propel the car by working the rear right-hand lever and was facing in the direction in which the carwas traveling. Two of the other men were in front of him with their backs in the direction in which the car was traveling, and were at the levers on the front of the car, and the other men were helping at the other levers. As the front men bent down following the lever which they were working, the rear men straightened up. The operation of a lever hand car propelled by the workmen is familiar to every one who has observed. The men in front are in an upright position while the men in the rear are stooping over. They keep bobbing up and down alternatively. After progressing about two miles they came to a tunnel which was 1, 000 feet from the place of the accident, and the track was straight from the tunnel to the point of accident. A short distance before they reached the uncompleted switch at which they were to work, was another switch which ran from the main line to serve another industry called the Brass Plant, and this switch had been left open by the crew of a work train which was serving that plant, and which also was delivering material for the construction of the uncompleted switch at the Domestic Coke Plant, a short distance away. The switch was set against traffic which came from the direction of Radcliff, but was open to traffic from the opposite direction. The men on the hand car, including the foreman, did not notice the condition of the switch and were traveling at about 12 miles an hour. It appears that on the day previous, in going on the hand car to work on the uncompleted switch, they had found the switch to the Brass Plant in the same condition, and had stopped their car and thrown the switch so as to let them pass. On this occasion, as just noted, they did not observe the condition of the switch, although the switch signal was red, warning them of its condition. This switch signal could be easily seen for four or five hundred feet before it was reached, on the straight track, and the car could have been stopped, at the rate it was going, in "the distance across the courtroom." Sayre, the foreman, was standing on the left-hand side of the car facing the direction it was going, but did not observe the red switch signal, saying that he was on the lookout for the work train which he knew was thereabout. Neither did the plaintiff observe the signal, although he was facing it as he approached, but excuses himself from that precaution for his own safety by saying that he relied upon the section foreman and was busy propelling the car. In propelling the hand car, the men were required to face in opposite directions to protect themselves from dangers behind and before. When the car reached the switch it was thrown from the track, and plaintiff fell off and injured his hip. The evidence is in conflict as to the extent of his damages, but that conflict has nothing to do with whether the service he was engaged in was intra or inter state, and the jury has settled this conflict in the evidence as to the amount of damages. The time of the section men is charged against each particular job they perform; and at the moment he starts to that particular job, however far it may be from his place of starting, he is paid for the time consumed in reaching it, and the pay is the same as if he had actually been at work. In other words, the time which an employee spends in getting to a particular job is paid for as if he was actually on that job. It is quite clear that, when the section crew started from the repair work near Radcliff that morning, their time began as if they were working on the uncompleted switch at the Coke Plant. The fact that they traveled over the main line of the railroad did not make them engaged in interstate service; but it appears that, in about a half mile from the place of starting, they stopped and did work on the main line, and it is clear that if an injury had...