William G. Moore v. Grand Trunk Railway Co.

• Citation: 108 A. 334,93 Vt. 383
• Parties: WILLIAM G. MOORE v. GRAND TRUNK RAILWAY COMPANY
• Decision Date: 07 October 1919
• Court: Vermont Supreme Court

108 A. 334

93 Vt. 383

WILLIAM G. MOORE v. GRAND TRUNK RAILWAY COMPANY

Supreme Court of Vermont

October 7, 1919

February Term, 1919.

CASE FOR NEGLIGENCE under the Federal Employers' Liability Act. Plea, the general issue. Trial by jury at the April Term, 1918, Essex County, Slack, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

John W. Redmond for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, and MILES, JJ., and FISH SUPR. J.

OPINION

WATSON

This action, brought under the Federal Employers' Liability Act of 1908, is for personal injuries suffered by the plaintiff at Island Pond, this State, on July 13, 1917 while engaged in coaling defendant's locomotive, No. 1018 (hereinafter referred to by number). The defendant is a common carrier by railroad, engaged in commerce between several states, and between states and a foreign nation. Thirty-two miles of its road are in Vermont, passing through the village of Island Pond, which is a divisional point. Seventeen miles west of Island Pond the road passes into Canada, continuing to Montreal and beyond. The village of Norton Mills is on this line at the Canadian border, but in Vermont. Fifteen miles east of Island Pond the road passes into the State of New Hampshire and on to Portland, Maine. All trains coming into Island Pond from either direction stop at that place; and every engine coming in hauling a train, finishes its trip there, is detached from the train, and taken to the coal shed to be coaled. After the coaling is done, the engine is run to the ash pit where the fire is either cleaned or dumped, as may be required. It is then taken to the turntable, turned, and placed in the roundhouse. When fired up and filled with water, it is ready for further serviceable action.

The declaration contains several count; but it appears from the record that the negligence of which the plaintiff complained and on which he relied for a recovery, was either that the engine was negligently started by the man (Earl Norris) in charge, or was by him negligently left in such a way that it started by its own action. In considering the questions presented for review, we observe these limits.

At the close of the evidence, defendant moved for a directed verdict on the grounds that on the evidence, taken in its most favorable light to the plaintiff: (1) Defendant was not guilty of actionable negligence; (2) the starting of the engine by Norris was not an operation in the line of his duty, and if in the circumstances he started it, such act must have been for a purpose personal to himself or actuated by his own caprice; and (3) neither the defendant nor the plaintiff, at the time of the transaction wherein the latter was injured, was engaged in interstate commerce or in an act so closely related thereto as to be a part of it. On the exception saved to the overruling of this motion, rest the real contentions before us.

On the day of the accident, at five o'clock in the afternoon, 1018 arrived at Island Pond, hauling freight train No. 554, from Richmond, Canada, and, as usual, was detached from the train and left by the engineer near the coal chutes, to be coaled. The plaintiff was then employed by defendant in the coal shed, doing all kinds of work toward unloading coal and coaling engines. He had been employed doing such work at that place the biggest part of the time for a large number of years. After the arrival of 1018, Norris, who was employed by defendant as a "fire dumper," and had been so employed between two and three months, asked the plaintiff to coal it as soon as he could, and get it up to the ash pit, so Norris could get home for supper by six o'clock. Thereupon the two got onto the engine, and Norris moved it to the right place to receive coal, stopping it there. The engine being thus placed, the plaintiff, standing on the tender, was attempting to pull down the chute through which coal would be delivered into the tender, when he received the injuries complained of.

This engine was ordered for freight train No. 551, which left Island Pond at six o'clock the next morning, and went with that train to Richmond. There was no direct evidence showing whether this order was general, covering some length of time, or special, for that trip only; nor that it was issued before the accident; nor that the injury was suffered by the plaintiff when engaged in coaling the engine for that run. But the undisputed evidence showed that on all week days (the trains did not run Sundays) during the entire month of July this engine was making that same run, that is, it went from Island Pond to Richmond one day and returned from Richmond to Island Pond the next day, except on July 3d another engine was used to haul that train; that 1018 was used for no other purpose during that month; that it was on that run for the year 1917, except there might have been one or two trips when another engine was substituted. It further appeared that on March 11th this engine arrived from Richmond at 5:45 a. m., was used in switching service later in the day, and left with a special freight train for Richmond at 5 p. m.; that on January 28th (which by common knowledge was Sunday) it was ordered for a work train to Norton Mills at 8 a. m., doing work on defendant's roadbed; that on June 24th it went from Island Pond to Richmond and came back on the 27th; that between September 11th and November 12th, it was out of Island Pond (the witness thought) in defendant's shop in Montreal, as it was given general repairs about that time; that it left Island Pond on December 22d and came back on the 27th. Every freight train and every passenger train which comes into, or leaves, Island Pond, is interstate or international.

In simple from the question under discussion comes to this: Engine 1018, making its regular trips, arrived in Island Pond at 5 p. m., on the day of the accident, as an instrumentality of international and interstate commerce, and left there at 6 a. m., next morning, as such an instrumentality. Did it by being detached from the train it hauled in, lose its international and interstate character so that the plaintiff, when engaged in coaling it, was not employed in such commerce, within the meaning of the Employers' Liability Act?

Supplying the locomotive with coal and water, and looking after the fire, on coming into that terminal, were acts essential to the locomotive's further efficient operation, but having no tendency to show an interruption in its international work; but rather, in the circumstances including the time of day and the early hour of its departure the next morning on its regular trip, they were acts which might reasonably be considered as tending to show preparation for that run. Considering therewith that the evidence was such as (we think) reasonably to warrant a finding that this locomotive was destined for such run, by an order issued prior to the time of the accident, it seems clear that, as the case stood, the question of whether the engine and the plaintiff were, at the time in question, engaged in an act so closely related to international or interstate commerce as to be practically a part of it, was for the jury to determine under proper instructions. Lynch v. Central Vermont Ry. Co., 89 Vt. 363, 95 A. 683; Castonguay v. Grand Trunk Ry. Co., 91 Vt. 371, 100 A. 908. it has been held by the Supreme Court of the United States that if an employee is injured while preparing an engine for an interstate trip, he is entitled to the benefits of the Federal Employers' Liability Act, although the accident occurred prior to the actual coupling of the engine to the interstate cars. New York C. & H. R. R. Co. v. Carr, 238 U.S. 260, 59 L.Ed. 1298, 35 S.Ct. 780; North Carolina R. Co. v. Zachary, 232 U.S. 248, 58 L.Ed. 591, 34 S.Ct. 305, Ann. Cas. 1914C, 159.

The other two grounds of the motion are so connected as to make it more convenient to consider them together. It is unnecessary to repeat the facts already stated leading up to spotting the engine to receive coal. Norris was the only person in the cab. Concerning just what took place resulting in the injury, there was no direct testimony except that given by the plaintiff and by Norris (called as a witness by plaintiff), the only persons present, or having any knowledge thereof. The former testified that, standing on the side of the tender, the engine being at a standstill, he reached up with the poker having a hook on the end of it, to pull the chute down, and as he got hold of the chute and "went to give a...