Waldum v. Lake Superior Terminal & Transfer Ry. Co.

• Decision Date: 04 February 1919
• Citation: 170 N.W. 729,169 Wis. 137
• Court: Wisconsin Supreme Court
• Parties: WALDUM v. LAKE SUPERIOR TERMINAL & TRANSFER RY. CO. ET AL.

169 Wis. 137

170 N.W. 729

WALDUM

v.LAKE SUPERIOR TERMINAL & TRANSFER RY. CO. ET AL.

Supreme Court of Wisconsin.

Feb. 4, 1919.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by Soren Waldum against the Lake Superior Terminal & Transfer Railway Company and the Industrial Commission of Wisconsin to set aside the award under the Workmen's Compensation Act. From judgment entered on an order confirming the award, plaintiff appeals. Reversed and remanded, with directions.

Plaintiff was injured August 30, 1916, at Superior, while working for the Lake Superior Terminal & Transfer Railway Company, hereinafter referred to as the railway company. At the time of the accident he was engaged in switching a string of empty box cars from the yards of the Northern Pacific Railway Company to the C. Reiss Coal Company's dock in the city of Superior. He was on top of a box car which was struck by other cars, and he was thrown under the cars and suffered injuries which resulted in the loss of his left arm. He had been employed by the railway company off and on since 1908. The railway company made application to the Industrial Commission for adjustment of compensation under the terms of the Workmen's Compensation Act. Plaintiff claimed that the Industrial Commission had no jurisdiction because the employés of the railway company were not subject to the Workmen's Compensation Act. The Industrial Commission after a careful examination held that it had jurisdiction and made an award. Plaintiff brought an action in the circuit court for Dane county to set aside the award, and upon hearing the circuit court made an order confirming the award, and judgment was entered thereon, and from such judgment plaintiff brings this appeal. Other material facts are stated in the opinion.W. P. Crawford, of Superior, for appellant.

Spencer Haven, Atty. Gen., and Winfield S. Gilman, Asst. Atty. Gen., for respondent Industrial Commission.

J. A. Murphy, of Superior, for respondent Lake Superior Terminal & Transfer Co.

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

Section 2394--8, subd. (3), Stats. 1915, is as follows: “The provisions of sections 2394--3 to 2394--31, inclusive, shall not apply to employés operating, running or riding upon, or switching freight or other trains, engines or cars for a railroad company operating a steam railroad as a common carrier,” unless both employer and employé shall have accepted the provisions of the act in writing. The railway company admits that it is organized as a railroad company, and is authorized by its charter to do business as a common carrier, but contends that it does not operate a steam railroad as a common carrier.

[1] The main question in this case is, Was the railway company at the time in question operating a steam railroad as a common carrier? The railway company is incorporated under section 1820, c. 87, Wis. Stats., which authorizes the formation of a corporation for the “purpose of constructing, maintaining and operating a railroad for public use in the conveyance of persons or property,” etc., and provides that upon the issuance of the patent provided for in the section the corporation so formed “shall possess all the powers and privileges and be subject to all the provisions of the law regulating railroad corporations.”

Section 3214, Stats. 1915, provides:

“Every association or company formed for the transportation of passengers or property, either by boats, vessels, stages, or other means, shall make a statement of the names of the persons comprising such association or company and file a copy of the same in the office of the clerk of the circuit court of each county through or into which it may transact business. All persons, companies and corporations engaged in any such business shall be deemed common carriers.”

[2] The following facts are substantially undisputed: The railway company was incorporated by four railroads entering the city of Superior: The Great Northern Railway Company, the Northern Pacific Railway Company, the Duluth, South Shore & Atlantic Railway Company, and the Chicago, St. Paul, Minneapolis & Omaha Railway Company; and by their joint action they fix and determine its policies. The tracks of the railway company run from the termini of the railroad companies which it serves to the various industries, docks, and elevators of Superior, about 100 in number. The railway company has filed its annual reports as a railroad company with the Railroad Commission of Wisconsin from 1914 to 1917, inclusive. On November 16, 1911, it filed its tariffs with the railroad commission, effective October 15, 1911, by which tariffs it is bound to transport loaded cars from one carrier to another, or from a carrier to an industry on its own tracks, or from connecting roads to industries on the Tower Bay front, at from $1 to $3 per car; to transport loaded cars from one industry to another at three-quarters of a cent per hundredweight of contents; to handle less than carload lots from a connecting carrier to an industry and from one industry to another at 5 cents per hundredweight. The fact that it settles with the owning companies on a basis of cost is immaterial. While the reports and tariffs were not proved, we take judicial notice of them. C. & N. W. Ry. Co. v. Railroad Comm., 156 Wis. 47, at 62, 145 N. W. 216, 974. The railway company owns no passenger or freight cars, but has 11 steam locomotives and employs from 30 to 70 men. As the business is actually conducted, the principal part of it is taking cars from the owning companies, switching them to plants, docks, and elevators, and returning them to the owning companies. At the time of its organization 99 per cent. of its total business was transacted for the owning companies. In recent years about 90 per cent. of its business has been transacted for the same companies, the 10 per cent. remaining being made up of work the railway company does for other connecting railroads and a small amount of business done for the public. The articles of incorporation contain the following provision:

“The general nature of the business of this company shall be to acquire depot, storing, yard and shop grounds, construct, maintain, use and operate for public use railroad lines and tracks, buildings, depots, depot grounds and storage tracks and shops and other railroad conveniences and appliances, in the county of Douglas, in the state of Wisconsin, for the transportation of rolling stock, freight and passengers, and for the purpose of connecting any and all the other various lines of railroad running to or into the said county of Douglas, and for the purpose of transferring rolling stock, freight and passengers between such railroads and between such railroads and docks and piers and vessels touching at any port or place in the county, and generally to exercise powers conferred by the statutes of the state of Wisconsin relative to the organization and powers of railroad corporations.”

The railway company has not handled for the general public any freight other than what is contained in the cars of some other railroad. The business transacted for local industries is not accepted directly by the railway company, but is contracted for through some of the owning companies. Waybilling and arrangements for shipment over its tracks are taken care of by the companies whom it serves. It has no ticket office and handles no freight except such as it receives from or through other railroad companies.

[3] A common carrier is defined as one who undertakes for hire or reward to transport the goods of such as choose to employ him, from place to place. This definition is approved in Doty v. Strong, 1 Pin. 313, at 324, 40 Am. Dec. 773. See 10 C. J. 339, note 35.

[4] What did the Legislature mean by exempting the employés of “a railroad company operating a steam railroad as a common carrier”? Obviously it left subject to the act the employés of all railroad companies operating by electricity or other motive power than steam. By limiting the exemption to the employés of a railroad company which operates a steam railroad as a common carrier, it made subject to the act the employés of the numerous railway companies operating as private carriers within the state, such as logging railroads and other like railroads operated for private purposes. We are not disposed to rest this decision upon narrow technical grounds, but rather upon broad general principles, and to ascertain and if possible give effect to the intent of the Legislature, which is, after all, the primary purpose in the construction of this or any other statute.

What the railway company in fact does is to accept for transportation for hire the property of all persons who have any need of the services which it is equipped to render. Under its contract and tariffs it must transport all cars offered to it by any of the companies which it serves, and the transportation service which it renders is in every instance a part of the service contracted for by a shipper. The fact that the shipper must contract for the service through another carrier is immaterial. The distinctive feature is this, any shipper may at any time command the transportation services of the railway company. It is bound to serve not only the owning companies, but all other companies similarly situated, upon a tariff basis approved by the Railroad Commission; and no doubt, should still other railroad companies tender it cars for transportation, it would also be obliged to accept and transport such cars under its tariffs. The fact that it settles with the owning companies under special contracts is not significant in this connection. It may not decline to render the service which it is equipped to perform and which it holds itself out as being ready, able, and willing to perform, whether that service be for the owning companies or for other companies. It is not so much the extent of the use which the public...