Watts v. Ohio Valley Electric Ry. Co

• Decision Date: 04 April 1916
• Citation: 88 S.E. 659
• Parties: WATTS. v. OHIO VALLEY ELECTRIC RY. CO.
• Court: West Virginia Supreme Court

88 S.E. 659

WATTS.

v.OHIO VALLEY ELECTRIC RY. CO.

Supreme Court of Appeals of West Virginia.

April 4, 1916.

(Syllabus by the Court.)

Error to Circuit Court, Cabell County.

Action under the Workmen's Compensation Act by Willard Watts against the Ohio Valley Electric Railway Company. Judgment for plaintiff, and defendant brings error. Reversed, and new trial awarded.

Vinson & Thompson, of Huntington, for plaintiff in error.

Marcum & Shepherd and J. W. Perry, all of Huntington, for defendant in error.

WILLIAMS, P. Plaintiff, a motorman on one of defendant's cars in the city of Huntington, was injured on the night of June 11, 1914, by colliding with another car being operated by another motorman on the sameline. In an action for damages he recovered a judgment against defendant for $3,000, and it seeks reversal on writ of error.

The overruling of defendant's demurrer to the declaration is the first assignment of error. Counsel insist that the declaration does not allege a cause of action against defendant; that it fails to aver that it has not provided reasonably safe and suitable machinery and appliances with which to carry on its business, or that it had not selected careful, skilled, and experienced servants, or had not adopted proper and necessary rules for the conduct of its operations. Defendant owns and operates, by means of electric power, car lines in the city of Huntington, and an interurban line between said city and the city of Ashland, Ky., and is, consequently, one of the class of employers subject to the Workmen's Compensation Act. Chapter 15P, Code 1913. Defendant did not elect to pay into the compensation fund, provided by that act, as it might have done. And section 26 of the act provides that an employer shall be liable to his employes for damages suffered by reason of personal injuries sustained in the course of employment, caused by the "wrongful act, neglect or default of the employer, or any of the employer's officers, agents or employes." It was therefore not necessary, as it was at the common law, to aver the master's negligence as the proximate cause of injury. Section 26 of the act denies to an employer, who has not contributed to the compensation fund, the common-law defenses of assumption of risk, contributory negligence, and negligence of a fellow servant; also the defense that the negligence in question was that of some one whose duties are prescribed by statute. The declaration properly avers negligence, and the nature of the negligent act averred discloses that it was committed by some agent, officer, or servant of defendant, for which the statute makes defendant liable. It avers that plaintiff was injured by defendant's negligently running one of its cars, causing it to collide with his. Defendant being a corporation, we know it operates cars only by its servants; we also know such servants are the fellow servants of plaintiffs; and therefore we see that the declaration avers defendant's liability.

Defendant moved to dismiss the action, on the ground that it is an interstate carrier, and hence the action was improperly brought under the state law, and should have been brought under the federal Employers' Liability Act. The motion was overruled, and this is defendant's second assignment. Defendant was both an interstate and an intrastate carrier; it operated some of its cars wholly within the city of Huntington, and operated others between Huntington and Ashland, Ky. A part of its tracks in Huntington was used by both classes of cars. The cars that caused plaintiff's injury were op erated on the Sixth and Eighth avenues line, wholly within the city, between Ninth and Twenty-Sixth Streets East. By the rules of defendant company, a passenger on either of those cars, going westward, who desired to go further than the end of that line, was given a transfer which entitled him, without additional fare, to ride on a Huntington and Ashland car, as far west as Camden Park, W. Va.; and, by the payment of additional fares, after reaching that point, he could continue on the same car to Ashland. Defendant is an interstate, as well as an intrastate, carrier; and, in certain cases, is liable under the federal act for injury to an employe. But that act does not apply, unless the injured servant and the carrier are both, at the time of the injury, engaged in interstate traffic. See federal Employers' Liability Act; Pedersen v. Delaware, etc., R. Co., 229 U. S. 146, 33 Sup. Ct 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; Easter v. N. & W. Ry. Co., 86 S. E. 37; Richey on Federal Employers' Liability, 67, and numerous cases cited in note. The car on which plaintiff was motorman was operated wholly within the city limits of Huntington, and, at the time of the collision, was carrying no passengers. Hence it was not, in any sense, then engaged in interstate commerce.

The giving of plaintiff's instruction and the refusal to give one asked for by defendant are assigned as error. Plaintiff's instruction submitted to the jury all the controverted, material facts, and correctly in formed them of the law as contained in section 26 of the Workmen's Compensation Act, and was therefore proper. Defendant's instruction was peremptory, telling the jury to find a verdict in its favor, and was properly refused.

The constitutionality of the act is assailed on the ground that it takes from defendant its common-law defenses. Ives v. South Buffalo Ry. Co., 201 N. Y. 271, 94 N. E. 431, 34 L. R. A. (N. S.) 162, Ann. Cas. 1912B, 156, is the only case cited to support this proposition. The New York Act, held in that case to be unconstitutional, was different, in a material respect, from the acts subsequently passed by many of the other states, including this state, in that it was compulsory on the employer, whereas the acts of the other states are elective. These acts have been upheld, as constitutional, by the highest courts of numerous states. 1 Bradbury on Workmen's...