This action is brought to recover damages on account of personal injuries sustained by the plaintiff while in the employ of the defendant company and its receiver, J. M. Dickinson.
To this claim the defendant interposed a general denial. The cause was tried to a jury, and a verdict returned in favor of the plaintiff. Judgment being entered upon the verdict, defendant appeals.
It will be noted that the plaintiff brings this action under what is known as the Federal Employers’ Liability Act. To recover, therefore, the plaintiff must bring himself within the provisions of this act, and must show that both he and the defendant were, at the time of the injury, engaged ' in interstate commerce. The true test of employment in interstate commerce is: Was the employee, at the time of the injury, engaged in interstate transportation, or any work so closely related to it as to be practically a part of it? Shanks v. Delaware, L. & W. R. Co.,
The record shows that the foreman under whom plaintiff worked was instructed by the company to take this motor car to a point along the defendant’s line where the telegraph poles needed fstraightening, and to straighten them. These were poles on which wires were strung and used by the company in directing the operation of the trains. The defendant’s road was used in carrying freight and passengers between different states. Plaintiff was taken by the foreman to do the work so directed to be done, and was on his way to the place where these poles were, at the time he received his injury. He was not actually engaged in straightening the poles, at the time he received his injury, but was on his way, in company with the foreman, to
In Ross v. Sheldon,
“The Federal Act in question laid upon the defendant, as a carrier of interstate commerce, not only the duty of mere repair, but the duty to maintain sufficiency in its equipment. The most that can be said in concession to the appellant is that the defendant was engaged in curing an ‘insufficiency of equipment,’ and that the decedent was engaged in work to that end. We reach the conclusion that the evidence brings the case within the operation of the Federal Act in question, and that this action, brought by the plaintiff under the state laws, wаs properly dismissed for that reason.”
We think that case governs this. The only fact that distinguishes it at ¿11 is the fact that this plaintiff was
In Pedersen v. Delaware, L. & W. R. Co.,
“The point is made that the plaintiff was not, at the time of the injury, engaged in removing the old girder and inserting the new onе, but was merely carrying to the place where that work was to be done, some of the materials to be used therein. We think there is no merit in 1 his. It was necessary to the repair of the bridge that the materials be at hand, and the act of taking them there was a part of that work. In other words, it was a minor task which was essentially a part of the larger one, as is the casi’ when an engineer take his engine from the roundhouse to the track on which are cars he is to haul in interstate commercе.”
See, also, St. Louis, San Francisco & Texas R. Co. v. Seale,
See North Carolina Railroad Co. v. Zachary,
“Again, it is said that, because deceased had left his engine and was going to his boarding house, he was engaged upon a personal errand, .and not upon the carrier’s business. Assuming (what is not clear) that the evidence fairly tended to indicate the boarding" house as his destination, it nevertheless appears that deceased was shortly to depart upon his run, having just prepared his engine for that purpose, and that he had not gone bеyond.the limits of the railroad yard when he was struck. There is nothing to indicate that this brief visit to the boarding house was at all out of the ordinary, or was inconsistent with his duty to his employer. It seems to us clear that the man was still ‘on duty,’ and employed in commerce, notwithstanding his temporary absence from the locomotive engine.”
In the case under consideration, preparation had been made to go the place where the interstate work was to he accomplished, and plaintiff was оn his way, with tools necessary for the work. The repairing of the poles upon which the wires were strung which were used by the defendant company in controlling and regulating the movement of its cars, both in intrastate and interstate commerce, was so closely related to interstate transportation, and so necessary to the proper regulation of interstate business, that it is, in the words heretofore quoted, practically a part of interstate business. He was on his way to do work closеly
The holding of the courts generally is that an employee of a railway company is engaged in interstate commerce when he is engaged in repairing or altering or reconstruсting tracks or bridges over* which interstate trains pass (Pedersen v. Delaware, L. & W. R. Co., supra) ; when engaged in repairing, altering, or reconstructing a pumping house or pumping station already used in interstate commerce (Narey v. Minneapolis & St. L. R. Co.,
In Deal v. Coal & Coke R. Co.,
In Grow v. Oregon Short Line R. Co.,
In Eley v. Chicago G. W. R. Co., (Iowa)
“An employee, while on his way to and from his work, if employed in interstate commerce, injured by the negligence of his employer, is entitled to prosecute his action for. damages under the Federal act.”
Under these authorities, we have no hesitancy in saying that the facts disclosed in this record place pláintiff’s case within the purview of the Federal Employers’ Liability Act, and that the district court did not err in so holding.
At the conclusion of plaintiff’s testimony, and again at the conclusion of all the testimony, the defendant moved for a directed verdict, on the ground that there was no showing by competent evidence that, at the time of the injury, either plaintiff or defendant was engaged in interstate
The record discloses, before these witnesses were called, the following facts: That the plaintiff was 32 years of age; that the car in which he was riding was derailed while moving at a rate of speed variously estimated at from 10 to 20 miles an hour; that the car, weighing about 100 pounds, loaded with tools of the estimated weight of 100 pounds, fell on top of him, rolling him for some distance; that, when the car was taken off, his head was between his knees, and his left foot turned around; that he received a Potts fracture of the fibula; that there was a breaking or tearing away of the ligaments around' the ankle, which caused hemorrhage; that there was injury of all the soft structures, muscles, nerves, blood vessels, ligaments, and tendons; that, after the fracture to the leg was reduced, the limb was placed in a cast, which was removed, аfter three or four days, for the purpose of dressing the wound; that thereafter, the cast was reduced, and continued for about six wmeks; that after that, there wTas massage and passive motion of the ankle; that this continued for about three months, after which he walked on crutches; that, up to that time, he was
He claimed he was suffering pain in his side, back, right shoulder, and right arm. At the time of the trial, there was ■ no displacement in these parts which manifested the cause of the pain. As to the cause of these pains, these.doctors were examined. The symptoms were subjective, and these pains were shown by the testimony of the plaintiff. The contention of the defendant is that these doctors ought not to be permitted to say what was the cause of the pain ; that they were permitted to do so; and that it was error -to permit them to do so. The defendant states its contention this way:
“Now, whether the plaintiff suffered an injury at the time of this accident, resulting in pain in his chest and back, was for the jury, because it was an ultimate fact, and because the evidenсe wdth respect to such fact was in conflict, and because the case quite largely was in controversy on this very proposition of fact. If the plaintiff suffered pain in his back, on the morning before the accident, it' might be there was reason for the existence of such pain, independent of the accident; and if this is true, of course, there could be no responsibility on the part of the defendant therefor, because it is only for an injury resulting from the act of negligence that recovery could be sustained.”
The doctors testified that they were unable, on examination, to discover any misplaced vertebrae, or any condition to which the claimed pain might properly be attrib
“Q. State whether, in your opinion, and what, hi your opinion, would those pains come from, or from what. are they caused? What would you say was the cause of the X>resent condition or ailment, supposing these facts to be true? A. The injury he sustained at the time was the cause of that.. Q. Now, Doctor, assuming the fact to be true, as set forth in the hypothetical question just propounded by me to you, what would you say was the cause of the pain he experienced some thirteen months after the original injury? A. If he were in good health before, I would think, due to the accident.”
We may assume, for the purposes of this case, that, under the rule laid down by this court, and followed with a persistency that would suggest that it ought to rest upon a sound basis of reasoning, an expert'witness ought not to be permitted to state, as an ultimate fact, that about which there is controversy, where that fact is deducible only as a conclusion from other facts shown. Sever v. Minneapolis & St. L. R. Co.,
• “It is an accepted rule that, while experts may testify as to what in their opinion may or may not have been the’ cause of a given result оr condition, it is not permissible for them to give their opinion as to the ultimate fact which the jury is organized to determine.”
In the case at bar, the evidence disclosed just how the plaintiff was injured, and the character and extent of the injury, so far as ascertainable from a physical examination of the body. All the wounds and injuries which the plain
“It was competent to show the condition of the body- and its organs; and if, from such, there followed, to the trained mind of the expert, a conclusion not evident to the jury or to the unskilled in the particular matter under inquiry, if, to such witness, the conditions apparent or described to him spoke of a natural cause, when viewed in the light of science, his opinion as to such cause is competent.”
“As applied to a case resulting in death, when the cause of death is necessary to be established, and is in dispute, whether it be in a civil or in a criminal action, we are satisfied that it is a correct and often necessary rule that, from the results of a personal examination, or in answer to a hypothetical question based upon such results, а physician whose qualifications entitle him to speak as an expert may, from the conditions’ exhibited or stated to- him, give his opinion as to the cause of death, where such is peculiarly within the knowledge of his profession, and is not susceptible of direct proof by other means.”
In Smith v. Detroit United Ry.,
“The reason given for permitting a properly qualified witness to give his opinion as to what did produce certain results or consequences, and not what might have produced them, is that the fact to be established is, What did cause the conditions found to exist? Where the determination of that question involves scientific knowledge or skill, Avhicli is possessed only by those who have given the matter special study, and with which jurors and others engaged in the ordinary avocations оf life are unfamiliar, a witness possessing the necessary qualifications may be asked for his opinion as to Avhat did cause the conditions described. Such an opinion is not conclusive, and is subject to be contradicted by other evidence. It is for the jury to determine the Aveight and value of such opinions, when considered in connection with all the evidence in the case.”
The same rule was laid down in Hunt n. Lowell Gas
We are content to let this case rest on the rule laid down in State v. Hessemus, supra, which is recognized in Kirby v. Chicago, R. I. & P. R. Co., supra, and in State v. Brackey,