Zikos v. Oregon R. Nav. Co.

• Citation: 179 F. 893
• Decision Date: 04 June 1910
• Docket Number: 1,394.
• Court: United States Circuit Court, District of Washington
• Parties: ZIKOS v. OREGON R. & NAVIGATION CO.

179 F. 893

ZIKOS v. OREGON R. & NAVIGATION CO.

No. 1,394.

United States Circuit Court, D. Washington, Eastern Division.

June 4, 1910

Birdseye & Smith, for plaintiff.

Ralph E. Moody (W. W. Cotton, Arthur C. Spencer, and Samuel R Stern, of counsel), for defendant.

WHITSON District Judge.

Plaintiff a citizen of Washington, commenced this action in the superior court of Spokane county, against the defendant, a citizen of Oregon, for personal injuries alleged to have been sustained by him within this state, while employed by the defendant 'as a sectionman and extra gangman.'

The cause was removed to this court as a controversy wholly between citizens of different states, and as one arising under and depending upon the construction of a federal statute.

Briefly stated, the grievance set out in the complaint is that at the times mentioned the defendant was engaged in operating a railroad in and between these states; that the plaintiff was on the 7th day of December, 1908, and for several months prior thereto had been, engaged as aforesaid in repairing the defendant's main track; that while acting under the instructions of the defendant's section boss upon said date he was directed to drive partially driven spikes further into the ties with a spike maul, for the purpose of tightening the joints of the rails, in pursuance of which he struck a spike, when, from the force of the blow, the head flew off and striking him in the left eye, destroyed the sight, and inflicted other injuries. It is alleged that this spike was old, worn out, defective, and insufficient, which was known to the defendant and to its employes who had theretofore placed it in position to be driven.

The provisions of the Act Cong. April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. Supp. 1909, p. 1171), are expressly invoked in order to bring the defendant within the rule of liability established by that act where injury results from the negligence of fellow servants. While it has been contended, in aid of the defendant's demurrer to the complaint, that the allegations are not sufficient to render the defendant liable, in that the defect, if any, must have been as apparent and manifest to the plaintiff as it was to the servants of defendant, and therefore no cause of action is stated in any view, the broad averments relating to the condition of the spike are strongly suggestive of proof that defendant observed the care which the law imposed upon it. A far-reaching question grows out of the denial of the power of Congress over the subject-matter of the action. A case involving the validity of the statute is pending before the Supreme Court, and but for the fact that this case is said to present phases not there in issue, without the decision of which it cannot further proceed, the authoritative interpretation of that court would be awaited for guidance.

Before passing to the contentions made regarding the constitutionality and applicability of the statute, it is proper to observe, because the plaintiff's brief would seem to indicate a contrary view, that the section foreman, as well as those of the other crew, were the fellow servants of the plaintiff. Northern Pac. R. Co. v. Hambly, 154 U.S. 349, 14 Sup.Ct. 983, 33 L.Ed. 1009; Northern Pac. R. Co. v. Peterson, 162 U.S. 346, 16 Sup.Ct. 843, 40 L.Ed. 994; Northern Pac. R. Co. v. Charless, 162 U.S. 359, 16 Sup.Ct. 848, 40 L.Ed. 999; Martin v. Atchison, Topeka & Santa Fe R. Co., 166 U.S. 399, 17 Sup.Ct. 603, 41 L.Ed. 1051.

The rule, therefore, prevailing in this state, to which attention has been called, is not one to be followed here in view of the decisions of the Supreme Court upon this general rule of law. Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 13 Sup.Ct. 914, 37 L.Ed. 772.

The argument that the statute is an attempt to exceed the powers of Congress, and, in any view, if it is not subject to this criticism, that it was not intended to include such controversies as the present, has been presented from several view points.

1. The position is taken that the act which, according to common knowledge, was passed for the purpose of curing defects of the Act June 11, 1906, c. 3073, 34 Stat. 233 (U.S. Comp. St. Supp. 1909, p. 1148), has perpetuated infirmities that the Supreme Court in Employer's Liability Cases, 207 U.S. 463, 502, 28 Sup.Ct. 141, 52 L.Ed. 297, regarded as fatal to the validity of the earlier act. The specific objection is that, while liability is carefully limited by the preceding clauses of section 1 to common carriers while engaged in commerce between the states, etc., and to injuries to employes while engaged in such commerce, the final clause of that section holds the carrier liable for 'injury or death resulting in whole or in part from the negligence of any of the officers, agents or employes of such carrier,' etc. Hence the conclusion that the vice pointed out by the Supreme Court in the act of 1906 has been preserved in the present act by the provision that the carrier is chargeable by an interstate employe with the negligence of one not engaged in interstate commerce, a matter, it is contended, with which the states only are concerned. But the ground upon which the court rested its decision was that interstate and intrastate employes were inseparably embraced within the statute, the latter not being within the purview of congressional legislation. The same point was made in Watson v. St. Louis, I.M. & S. Ry. Co., 169 F. 943. In passing upon it Judge Trieber in a learned opinion accepted the literal construction of the statute as constituting the legislative intent, but disposed of the argument by holding to the competency of Congress in virtue of the commerce clause of the Constitution. That it was the purpose to make an interstate carrier liable to an employe engaged in interstate commerce clause of the Constitution. That it was the purpose to make an interstate carrier liable to an employe engaged in interstate commerce for the negligence of a fellow servant, also engaged in such commerce, is beyond controversy. It is not necessary, in view of the facts disclosed by the complaint, to go further than to hold that interstate and intrastate service are separable by upholding liability when injury results from the negligence of fellow servants engaged in interstate commerce and denying it when resulting through the negligence of an intrastate employe to one engaged in interstate commerce; and this if the act could be held subject to the objection urged against it. This would appear at first blush to run counter to the reasoning which resulted in the overthrow of the first attempt to regulate the matter; but the distinction lies in the definite designation as to when the interstate carrier shall be liable, namely, when engaged in interstate commerce, and to whom it shall be liable, that is, to the employe so engaged, a segregation not made in the original act.

2. But even admitting the sufficiency of the act in other respects, it has been said that Congress may not regulate the relation of master and servant. Counsel base this conclusion upon language used by Mr. Justice White in the Employer's Liability Cases, supra, but the opinion, carefully read, does not bear out the contention. The following seems to put the matter at rest: 'We think the unsoundness of the contention that, because the act regulates the relation of master and servant, it is unconstitutional, because under no circumstances and to no extent can the regulation of such subject be within the grant of authority to regulate commerce, is demonstrable. We say this because we fail to perceive any just reason for holding that Congress is without power to regulate the relation of master and servant, to the extent that regulations adopted by Congress on that subject are solely confined to interstate commerce, and therefore are within the grant to regulate that commerce or within the authority given to use all means appropriate to the exercise of the powers conferred. To illustrate: Take the case of an interstate railway train, that is, a train moving in interstate commerce, and the regulation of which therefore is, in the nature of things, a regulation of such commerce. It cannot be said that, because a regulation adopted by Congress as to such train when so engaged in interstate commerce deals with the relation of the master to the servants operating such train or the relations of the servants engaged in such operation between themselves, it is not a regulation of interstate commerce. ' Page 495 of 207 U.S., page 144 of 28 S.Ct. (52 L.Ed. 297).

That the four nonconcurring justices understood the majority opinion as upholding the power of Congress in this regard appears from their dissenting opinions. Pages 504, 540, 541 of 207 U.S., pages 148-163 of 28 S.Ct. (52 L.Ed. 297). Subsequently, in Adair v. United States, 208 U.S. 178, 28 Sup.Ct. 282, 52 L.Ed. 436, the court, referring to the decision, gave unqualified indorsement of that view by the language following:

'In that case the court sustained the authority of Congress, under its power to regulate interstate commerce, to prescribe the rule of liability, as between interstate carriers and its employes in such interstate commerce, in cases of personal injuries received by employes while actually engaged in such commerce.'

3. Giving full scope to the power of Congress over interstate commerce, and admitting sufficient breadth of the act to include the right to regulate the relations of employer and employe while each is engaged in such commerce, still it is contended that it appears from the complaint that the plaintiff was not so engaged; that repairing the track wholly within the state is in no sense within that term. But the track of a railroad company...