81 W. Va. 251 | W. Va. | 1917
J. W. Barnett, administrator of Homer L.- Keener, deceased, brought this action against the Coal & Coke Railway company to recover damages on account of the death of deceased, alleged to have been caused by its negligence. After all the evidence had been introduced the court, on motion of defendant, directed the jury to find a verdict for it, over the plaintiff’s objection, and later overruled his motion to set
The action is brought under the state or common law, and it is admitted defendant had paid nothing into the workmen’s compensation fund, provided by the Workmen’s Compensation Act for the benefit of injured employes. Defendant is engaged in both intrastate and interstate commerce, about ninety or ninety-five per centum of its business being of the latter class, although its entire line of railroad is within the State of West Virginia. , It maintains machine shops for the building and repairing of cars at Gassaway, and deceased, at the time of his injury, and for about a month prior thereto, was employed in the shops.- The shops consisted of a number of large- rooms through the walls of which open spaces or doorways were made for the passage of cars. It was the custom for the employes to push the cars, that were to be repaired or unloaded as the case -might be, from the transfer table to the places where they were to be repaired or unloaded, some of them pushing at the rear and others at the sides of the car. Deceased was crushed while pushing at the side of a car loaded with lumber, the space between the side of the car and the jamb of the door being too small for the passage of his body. There are a number of such doorways at the shops, and there is evidence tending to prove that, in some of them the tracks were laid closer to one side of the doorway than to the other; that some of them were wide enough for the body of a man, pushing at the side of a car, to pass without injury, and others were not. This condition constituted the negligence of which plaintiff complains.
Whether it was negligence, under all the facts and circumstances of the ease, is a mixed question of law and fact, which should have been submitted to the jury upon .proper instructions by the court respecting defendant’s legal duty to its employes. . If defendant had constructed all 6f its doorways, and had laid its tracks leading through them, so that all the spaces would have been obviously too narrow to allow a man to pass through safely at the side of a car, we could
What has already been said as well as many of the authorities "cited, applies not only to the alleged negligence of defendant, but also to the alleged contributory negligence of deceased. Although it is proven he had previously assisted in moving other cars about the shops, there is no evidence that he had ever assisted in moving a car over the particular track in question. There is some testimony to the effect that he was warned of the danger while he was pushing the car, but whether he heard the warning and appreciated the danger is not clear, for he made no reply and continued pushing at the side of the car. There were two door-ways through which the car had to pass, and he had just passed through the first one safely, and no doubt supposed he could likewise pass through the next one. But the space at the second one was several inches narrower than it was at the first, the difference, however, was not so -great as to be readily discerned at a distance, and there is some evidence that deceased was
Counsel for defendant contend that, at the time of deceased’s injury resulting in his death a few hours thereafter, he was engaged in performing 'an act relating to interstate commerce, and the ease falls under the Federal Employers’ Liability Act, and not the state law. This position is not maintainable. The car which deceased was assisting in moving was loaded with lumber to be used at the 'shops in building and repairing cars; it had been loaded at Elkins and shipped to defendant’s shops sometime before the injury, but how long before does not appear. The lumber had unquestionably reached its destination. Both the origin and destination of .the shipment were in this State, making it clearly an intrastate shipment. That the lumber might thereafter be used in the manufacture or repair of cars employed in interstate commerce could not make the act of deceased in moving the car into the shops to be unloaded an act connected with interstate transportation.
It was held by the Supreme Court of the United States, in Lehigh Valley R. Co. v. Barlow, decided May 21, 1917, and reported in No. 15 of the United States Supreme Court Advance Opinions, published by the L. C. P. Co., July 1, 1917, that, “A member of a switching crew assisting in placing on an unloading trestle in the railway company’s yards coal cars belonging to such company and loaded with supply coal for it, which with their contents, had passed over its
In Minneapolis & St. Louis R. R. Co. v. Winters, 242, U. S. 353, where an employe was injured while repairing an engine which had been used in interstate commerce before the injury and likewise so used afterwards, but where there was nothing to show that it was permanently or specially* devoted to such commerce, or assigned to it at the time of the injury, the court Wld the injured employee was not then engaged in an act of interstate commerce, and the case did not come within the Federal Employérs’ Liability Act. Likewise, in Chicago &c. R. R. Co. v. Harrington, 241 U. S. 177, it was held, that an employe of an interstate carrier, engaged in removing coal from storage tracks to coal chutes was not engaged in interstate commerce, although the coal had been previously brought from another state and was to be used by locomotives in interstate hauls. Apropos to this question, see also Delaware &c. R. R. Co. v. Yurkonis, 238 U. S. 439.
The facts presented here are much stronger to show deceased was. not engaged in interstate commerce at the time of his injury than they were in the cases just cited. Numerous decisions by the courts of the different states of the Union, to the same effect, could be cited to support our conclusion on this point, but we deem the foregoing from the highest authority on matters relating to interstate commerce sufficient.
Defendant had not paid any premiums into the workmen’s compensation fund.' Nevertheless its counsel insist its common law defenses were not taken away. Evidence of contributory negligence and assumption of risk by deceased was admitted, but whether properly so depends upon the construction of section 52 of the Workmen’s Compensation Act. The terms of Sec. 9 of the act, defining who are em
“The provisions' of this act shall apply to employers and employes engaged in intrastate and also interstate or foreign ■commerce for whom a rule of liability or method of compensation has been or may be established by the congress of the United States only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate, or.foreign commerce, except that any such employer and any of his employes working only in this state may with the approval of the commission, and so far as not forbidden by any act of congress, voluntarily accept the provisions of this act by filing written acceptances with the commission, and such acceptances, when filed with and approved by the commission, shall subject the acceptors irrevocably to the provisions of the act to all intents and purposes as if they had been originally included in its terms. Payments of premium shall be on the basis of the pay-roll of the employes who accept as aforesaid.”
To.the extent only that an interstate carrier may also be -engaged in some other business or industry not connected, or intermingled in any way with interstate commerce, this section may apply the Workmen’s Compensation Act unconditionally. But, so far as his business is so intimately connected with interstate or foreign commerce as not to be ■capable of classification as being distinctively either intra
Sec. 52 of the Workmen’s Compensation Act was not relied on by defendant in Watts v. Ohio Valley Electric Ry. Co., 78 W. Va. 144, 88 S. E. 659. It was not discussed in brief of counsel, nor was our attention in any way. called to it,
Plaintiff should have been permitted to testify how far the doors, when open, projected beyond the jamb on the other side of the opening at which plaintiff was injured, and at the other openings through which the car had passed. Plaintiff had testified that the door did project at the point where deceased was caught, and there was also evidence that the other spaces were wider. This rejected evidence was pertinent as tending to show the conditions and circumstances respecting deceased’s place of work.
It was proven deceased was killed while helping to push a gondola car belonging to defendant, and there was evidence that it sometimes handled, at its shop, cars belonging to other railroad companies. Plaintiff offered to prove by witness Black,shire, that all cars of the gondola type are not of the same size, and that other gondola cars had been moved through the door-ways in the same manner in which the one was being moved at the time deceased was .injured, and the court rejected the' evidence. It should have been admitted.
It was not error to permit witness Blackshire, in his answer to a question on cross-examination, to state his reason for trying to warn deceased when he was pushing at the
The door-ways through which the ears were pushed were shown to be similar in size and construction, and the testimony of Blaekshire, offered by plaintiff to prove that, when pushing cars through the planing mill room, the men at the sides of the car sometimes passed between the car and the jamb of the door, should have been admitted. It tended to prove a custom prevailing among the workmen at the shops, and to disprove the charge of contributory negligence on the part of deceased.
I. N. Kalbaugh, a witness for defendant, who had been its superintendent of motor power at the shops for a period of seven years, during which time cars had been moved through the planing mill room in the same manner the car was moved on the occasion in question, was asked the following questions by defendant’s counsel and answered as follows: “Q. During the time you have been-there has anybodjr been hurt or injured in moving these cars through there? A. Not to my knowledge. Some of them may have been slightly hurt.” And, after having testified concerning measurements which he had taken of the space in which deceased was caught and crushed, and had stated that a very thin man could go through that space, he was asked: “Q. Would it be a safe thing to do? A. It certainly wouldn’t. It would be a foolish thing for a man to attempt.”
The last question and answer above were improper because they called for the witness'1 opinion respecting one of the vital issues, whether deceased was guilty, of contributory negligence. That was not a question to be determined by expert knowledge, or one calling for opinion evidence. The jury had to determine it according to their own opinion from
Testimony that no other employe had been injured in the same manner as deceased, in a long period of operation, tended to prove defendant was not negligent in furnishing its employes a reasonably safe place in which to work, and according to the weight of authority was admissible. 4 La-batt on Mas. & Ser., Sec. 1587.
It was not error, however, to permit said witness to testify that deceased worked at repairing cars and ears of foreign railroad companies were sometimes repaired at defendant’s shops. That testimony was admissible to show deceased was sometimes engaged in interstate commerce,' although it did not tend -to prove the particular work he was doing at the time he was injured was interstate commerce.
For errors herein pointed out, and particularly the error in directing the jury to find a verdict for defendant, the judgment will be reversed and the case remanded for a new trial.
Reversed and remanded for new trial.