Walker v. Iowa Cent. Ry. Co.

• Decision Date: 03 October 1916
• Docket Number: 33.
• Parties: WALKER v. IOWA CENT. RY. CO. et al.
• Court: U.S. District Court — Southern District of Iowa

241 F. 395

WALKER v. IOWA CENT. RY. CO. et al.

No. 33.

United States District Court, S.D. Iowa, Ottumwa Division.

October 3, 1916

On Rehearing, March 16, 1917.

The action was originally commenced in the state court August 30 1909, and later removed by the railway company to the United States Circuit Court for this district. The action is to recover jointly from the defendant railway company, and Clarence Helm and J. W. Schreve, engineer and conductor respectively, of one of its trains, damages for a personal injury alleged to have been suffered by the plaintiff and caused by the railway company and its said engineer and conductor, while plaintiff was moving a baggage truck along the platform of the depot at New Sharon, a station on the line of the railway company in Iowa. The injury occurred December 8, 1908; the plaintiff being then employed by the railway company as telegraph operator at New Sharon.

The cause was removed September 29, 1909, by the railway company to the Circuit Court, upon the alleged ground of a separable controversy between the railway company and the plaintiff and the diversity of citizenship between them, the plaintiff being a citizen of Iowa and the railway company an Illinois corporation, and was tried in that court before the late Judge McPherson and a jury, resulting in a verdict and judgment for the plaintiff against all defendants in May 1912. The cause was then taken by the railway company upon writ of error to the Circuit Court of Appeals for this circuit, where the judgment was reversed for an error in the instructions, February 26, 1913. 203 F. 685, 121 C.C.A. 579. Reference is made to that report for a full statement of the case. The plaintiff filed a petition for rehearing in the Court of Appeals, in which for the first time, it is said in argument, the question was raised that the cause of action arose under the Employers' Liability Act of Congress approved April 22, 1908 (35 Stat. 65), which petition was overruled May 15, 1913. A petition for certiorari was then presented by the plaintiff to the Supreme Court of the United States, which was denied October 20, 1913. 231 U.S. 746, 34 Sup.Ct. 319, 58 L.Ed. 464. The mandate from the Court of Appeals was then returned to and filed in this court October 25, 1913; the cause coming to this court upon the abolition of the United States Circuit Court.

November 27, 1914, the plaintiff, with leave of court, filed in this court an amendment to the original petition, in which for the first time he sought to recover from the railway company upon the alleged ground that his cause of action arose under the Employers' Liability Act of Congress, to which amendment the defendant, on December 24, 1914, filed this demurrer, upon the ground that the cause of action set forth in said amended petition was barred both by the two-year limitation of the Employers' Liability Act and the statute of limitations of the state of Iowa.

McNett & McNett, of Ottumwa, Iowa, for the demurrer.

S. V. Reynolds and John N. McCoy, both of Oskaloosa, Iowa, opposed.

REED, District Judge (after stating the facts as above).

The Supreme Court of the United States has repeatedly stated and held what is necessary for an employe or his personal representatives to allege and prove to warrant a recovery under the Employers' Liability Act of Congress for an injury suffered by the employe while in the service of the carrier in such commerce. In Illinois Central Railroad Co. v. Behrens, 233 U.S. 473, 34 Sup.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163, Mr. Justice Van Devanter, speaking for the court, said of this question:

'Passing from the question of power (to enact the Employers' Liability Act) to that of its exercise, we find that the controlling provision in the act of April 22, 1908, reads as follows: 'Section 1. That every common carrier by railroad while engaging in commerce between any of the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employe, to his or her personal representative, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed.' * * * Giving to the words suffering injury while he is employed by such carrier in such commerce, their natural meaning, as we think must be done, it is clear that Congress intended to confine its action to injuries occurring when the particular service in which the employe is engaged is a part of interstate commerce. * * * ' There can be no doubt that a right of recovery thereunder arises only where the injury is suffered while the carrier is engaged in interstate commerce and while the employe is employed by the carrier in such commerce.' * * * ' The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?"

And see C., B. & Q.R. Co. v. Harrington, 241 U.S. 177, 36 Sup.Ct. 517, 60 L.Ed. 941.

Two essential facts, therefore, are necessary for such a recovery: (1) The carrier, at the time of the injury, must be engaged in interstate commerce; and (2) the employe at the time of his injury must also be employed by the carrier in such commerce. Both the carrier and the employe must therefore, at the time of the injury of the latter, be engaged in such commerce, and it must be distinctly so alleged in the petition or complaint. Inasmuch as the carrier may be engaged in both interstate and intrastate commerce at the same time, there is difficulty in many cases in determining in advance of the trial that the carrier and the employe, at the time the latter suffers an injury, are each engaged in what is termed 'interstate commerce by railroad,' and much liberality is very properly exercised in the granting of amendments to pleadings to state the facts; but this must not be permitted to an extent that will defeat the substantial rights of either party.

The cause of action as alleged in the original petition, upon which the cause was tried in the Circuit Court, is in two counts, and will be best understood by stating the substantial allegations thereof. Count 1, omitting the formal parts and repetitions, alleges in substance:

That the defendant Iowa Central Railway Company is a railway corporation organized under the laws of Illinois, and operates a line of railway in and through the state of Iowa entering the state at a point on the Mississippi river near Oakville, thence running through several counties, including the counties of Mahaska and Poweshiek, and leaving the state at its northern boundary near the city of Northwood, Iowa; that defendants Helm and Schreve were at the times hereinafter mentioned employes of the railway company as engineer and conductor, respectively, in charge and control of one of its trains causing the injuries hereinafter referred to; that about the 8th day of December, 1908, this plaintiff was in the employ of the defendant railway company at its station in New Sharon, Mahaska county, Iowa, as day operator; that it was plaintiff's duty as a part of said employment to assist in the loading and unloading of outgoing and incoming baggage; that the defendant railway company provided for such use a vehicle commonly called a baggage truck; that the depot at New Sharon is located within the city limits of said city, and extends northward to a public thoroughfare which crosses the tracks of the defendant company; that the depot platform is nearly upon a level with the railroad tracks, and within about a foot of the rails thereof; that said depot is a public place, where people are invited to come, and where a great amount of business is transacted, and many passengers taken care of, and is a much-frequented place; that for about a mile to the north of said depot the track of the railway is practically straight and the view unobstructed; that on the date above mentioned one of the company's engines and train of cars were standing immediately west of the depot on what is known as the 'Newton Branch'; that said engine was emitting steam and causing much noise; that there had been heavy snowfalls prior to December 8, 1908, accompanied with thaws and freezing, and the railway company negligently and carelessly permitted the snow and ice to accumulate upon the platform. Under these conditions the plaintiff in pursuance of his duties took the baggage truck (before mentioned) from a point on the platform at the north end of the depot and was pushing the same south through the snow and ice along the platform on the east side of the depot, in order to properly handle the baggage for the Newton train, standing on the west side of the depot; that while in the act of so doing, in the strict performance of his duties, and in the exercise of due care, one of the company's engines and trains in charge of defendants Helm and Schreve approached said station from the north at a high and dangerous rate of speed in violation of an ordinance of the town of New Sharon, without blowing the whistle, ringing the bell, or in any manner apprising the plaintiff or the people at the station of its approach, and while the defendant company and its codefendants were in a position to see the people, and it was their duty to see and look out for persons in or near the track while passing through the stations, and, so seeing and so knowing, the defendants negligently and carelessly, and without any regard to plaintiff's rights, ran said engine into the plaintiff, knocking him down, from which he received permanent, dangerous, and serious injuries, crushing,...