Wabash Railway Company v. Whitcomb

• Decision Date: 27 January 1927
• Docket Number: 12,610
• Citation: 154 N.E. 885,94 Ind.App. 190
• Parties: WABASH RAILWAY COMPANY v. WHITCOMB
• Court: Indiana Appellate Court

154 N.E. 885

94 Ind.App. 190

WABASH RAILWAY COMPANY v. WHITCOMB

No. 12,610

Court of Appeals of Indiana

January 27, 1927

Rehearing denied May 17, 1927. Transfer denied November 24 1931. Appellant's petition for certiorari to United States Supreme Court denied March 21, 1932.

From Wabash Circuit Court; Frank O. Switzer, Judge.

Action by Irene R. Whitcomb as administratrix of the estate of S. A Whitcomb against the Wabash Railroad Company. From a judgment for plaintiff, the defendant appealed.

Affirmed.

Dan W. Sims, Charles H. Stuart, Allison E. Stuart and J. D. Conner, Jr., for appellant.

John H. Kay and Henry M. Dowling, for appellee.

OPINION

NICHOLS, J.

Action by appellee to recover damages from appellant for the death of her husband. Liability was predicated upon the federal Employers' Liability Act. The complaint was in two paragraphs. By the first paragraph, appellee sought to recover damages for the benefit of decedent's widow and next of kin on account of the death of said decedent. By the second paragraph, appellee sought to recover damages for the injuries to and suffering of said decedent in the interval between the accident and his death.

Decedent was a fireman upon appellant's railroad, and, on November 12, 1923, and near the station at Attica, there was a collision between the engine upon which he was fireman and another locomotive. He received injuries from which he died about 40 or 50 minutes following the collision.

There was a trial by jury resulting in a verdict against appellant for $ 25,000. From the judgment on that verdict, this appeal is taken.

Appellant respectively assigns that the court erred in overruling appellant's separate demurrer, respectively, to the first and second paragraphs of complaint, in overruling appellant's motion for a new trial, and in overruling appellant's motion in arrest of judgment.

Most of the facts are undisputed. The immediate cause of the accident, which occurred at 6:01 on the evening of November 12, 1923, was a collision between two of appellant's trains at a point on appellant's single main track railroad, a short distance east of Attica, Indiana; the track at that point, and for about 3,611 feet west thereof, was practically straight, and ran in a generally northeast and southwest direction; the engines of both trains were moving with their tenders in front; the engine upon which appellee's decedent was then employed, known as "No. 417," was moving eastward on the main track at about 18 or 20 miles per hour, pulling a train consisting of a freight car partly loaded with scrap iron and a caboose; the other engine, No. 76, was engaged in switching freight cars at a brick yard near to and east of the point of collision, and had come almost to a standstill on the main track, when struck by engine No. 417.

That portion of appellant's railway was equipped with automatic block signals; there were two of these, located on the south side of the track and governing eastbound traffic in the vicinity of the place of accident, one being 3,600 feet west of the place of accident, and one exactly at the point of collision; both of these showed "red" at the time appellant's engine No. 417, in charge of George Miller, appellant's engineer, approached them, which designation signified "stop" for east-bound traffic.

On the morning of the day of the accident, engine No. 417 started west from Lafayette, Indiana, hauling an empty freight car and a caboose, the train crew consisting of the engineer, conductor, fireman and two brakemen, and a gang of section men, all in the employ of appellant, consisting of appellant's track supervisor, three section foremen and 11 laborers.

Work train extra No. 417 had no other work to do than to gather up, load and transport this scrap iron on the day of the collision; in so doing, on its westward movement, it picked up a second freight car; it loaded the first car with railroad scrap collected on said westbound movement at nine different stations along appellant's railway, including State Line, Indiana; at the latter point, which the work train reached shortly before 4 p. m. the same day, this car of scrap had been completely loaded, and it was set out by said train and left by it temporarily at State Line, Indiana, to be picked up in its loaded condition and transported by a later train to appellant's reclamation department at Decatur, Illinois.

The second car was partly loaded that day with scrap iron by the time the work train reached State Line; but, not being ready for further transportation to its destination at Decatur as a fully loaded car, it was retained in the work train, and returned with it to Lafayette; on a subsequent day, the load was completed and ultimately went forward to Decatur, to the reclamation plant.

The work train finished doing work that day at State Line, about 4 o'clock p. m. and started back to Lafayette; on the return trip, the work train gang did no active work between State Line and Lafayette, nor was it appellant's intention that they should; all that this train was doing on the return trip was getting back to Lafayette; the engine hauling the train eastbound was the same that hauled it westward that day; the crew, the sectionmen and foremen, were the same as when the train left Lafayette; the same track supervisor was in charge of the sectionmen, whose time would not be up until they arrived at Lafayette; their pay was not earned until they reached the latter point.

The decedent's duties required him, among other things, to fire the engine; he was acting under the engineer, who was upon the engineer's seat, at the time of the collision and was killed; the decedent was caught and crushed between the head of the boiler and the end of the tank on a connecting gangway where a fireman usually does his work in firing the engine; he was pinned in a position north of the fireman's seat box; he lived for about 45 or 50 minutes, when he died as a result of his injuries.

It is appellee's contention that the work train, on its trip from Lafayette to State Line, while engaged in collecting, loading and transporting railway scrap iron destined for appellant's reclamation plant at Decatur, Illinois, was engaged in interstate commerce, and that it was immaterial, so far as concerns appellant's liability, whether the collision occurred on the west-bound or east-bound portion of the trip; that both constituted one complete movement of the work train, which was intended to return its crew and section gang to Lafayette the same day. This was the theory of both paragraphs of complaint. Appellant contends that the facts averred and proved do not sustain the theory of the complaint, and that they show that appellee's decedent was not engaged in interstate commerce while loading the scrap iron, and that, even if he was, the trip back to Lafayette was a separate and distinct trip from the one going west, the train moving under a different classification, and with different wheel reports. It is conceded, however, that the train and the men upon it were the same on both, that the same conductor made wheel reports of the train, going and returning, that the time of the sectionmen did not end at State Line but at Lafayette, and that the work train had no work to do on its return trip except to get back to Lafayette.

Appellee further contends that the collision was due to the respective engineer's negligence, the one in running past the semiphore signal lights which were set against him, and the other in failing to protect his train while on the main track by warning the on-coming work train, and that, even if the decedent had been negligent, the only effect of such negligence, under the federal Employers' Liability Act, would be to reduce the damages. Appellant contends that, it clearly appearing that the decedent's place as fireman was on the side of the engine next to the block signals, it was his primary duty to observe them, and failing so to do, he was guilty of contributory negligence which should preclude a recovery.

We confess the difficulty which we have, under the circumstances of this case, and under the authorities cited, to determine whether appellee's decedent was engaged in interstate commerce at the time he was killed. The lines of distinction are sometimes so fine that they are difficult to perceive.

We have examined the numerous authorities cited by appellant to sustain the different phases of its proposition that the decedent was not engaged in interstate commerce. Briefly stated: In Illinois Central R. Co. v. Behrens (1914), 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C 163, the injured man was engaged in moving intrastate cars.

In Erie R. Co. v. Welsh (1916), 242 U.S. 303, 37 S.Ct. 116, 61 L.Ed. 319, the injured man, a yard conductor, was going from the yard where he had been locating interstate cars, to the office.

In Shanks v. Delaware, etc., R. Co. (1915), 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C 797, and in Minneapolis, etc., R. Co. v. Winters (1916), 242 U.S. 353, 37 S.Ct. 170, 61 L.Ed. 358, Ann. Cas. 1918B 54, the injured were employed in machine shops which repaired both interstate and intrastate cars.

In Chicago, etc., R. Co. v. Harrington (1916), 241 U.S. 177, 36 S.Ct. 517, 60 L.Ed. 941, cars of coal had reached their destination, and were afterward being moved to the coal bins, when the accident occurred. Lehigh Valley R. Co. v. Barlow (1917), 244 U.S. 183, 37 S.Ct. 515, 61 L.Ed. 1070, and Schauffele v. Director General (1921), 276 F. 115, present substantially the same circumstances.

In Illinois Central R. Co. v. Rogers (1915), 221 F. 52, the injured party was cleaning stencils for the purpose of marking cars.

In Chicago, etc.,...