217 Wis. 272 | Wis. | 1935
The Industrial Commission contends that the circuit court erred in setting aside an award for compensation to be paid by the plaintiff, the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, for the death of Paul Mueller as the result of injuries sustained on June 11, 1932, while in the employment of the plaintiff. The only question on this appeal is whether the commission erred in holding that under the facts, which are undisputed, Mueller was not engaged, at the time of his injury, in interstate transportation. or commerce. It is conceded that, if he was then engaged in such transportation, the Federal Employers’ Liability Act (45 USCA, §§ 51-59; U. S. Comp. Stat. §§ 8657-
Mueller, Fred L. Dettman, and others were in the employment of the plaintiff at one of its freight depots and platforms in Milwaukee to load and unload freight shipped in either intrastate or interstate commerce. When articles brought on shippers’ trucks to plaintiff’s depot for shipment were too heavy to be unloaded by the shipper’s employees, it was customary for the plaintiff to have its employees, such as Mueller and Dettman, assist in such unloading, and to use, in that connection, appliances provided by the plaintiff. In accordance with that custom, Dettman and Mueller were assisting, at the time of the.latter’s injury, in unloading a boiler, weighing six hundred and fifty pounds, from a truck, on which it had been brought to plaintiff’s depot by Ray Ger-hardt, an employee of the Milwaukee Reliance Boiler Works, for shipment to Kánsas City, Missouri, under a proposed bill of lading, which had been prepared, as customarily, by the shipper, to be issued by the plaintiff upon the unloading of the freight on plaintiff’s platform. Upon arriving at the depot, Gerhardt told plaintiff’s employee, who was in charge, that the boiler was to be shipped to Kansas City, and that employee directed where it was to be unloaded onto plain
Upon those facts the commission found that, although, at the time of Mueller’s injury, it was the intention of the Boiler Works to ship the boiler over plaintiff’s railroad to Kansas City, it “had not yet been delivered onto the platform” of plaintiff, “and had not yet been accepted for shipment so as to have been in interstate commerce or interstate transportation,” and that it “was still within the possession and control” of the Boiler Works, “with the rig'ht on.the part of that company to still decline to ship” it over plaintiff’s railroad; and therefore the commission concluded that at the time of injury “the boiler was not in interstate transportation or in interstate commerce,” and Mueller “was not engaged in interstate commerce or interstate transportation.”
The propositions that, while the boiler was in the process of being unloaded onto plaintiff’s platform by Mueller, Dettman, and Gerhardt, it had not passed entirely out of the possession and control of the Boiler Company, and that as
Regardless of what the Boiler Company’s legal rights and obligations would have been in relation to the boiler, if it had subsequently declined to ship it, the fact is that it had been actually hauled to the plaintiff’s platform and there offered to plaintiff with the declared intention and for the sole purpose of transportation to Kansas City under the proposed bills of lading, which had been prepared, as customarily, by the shipper; and that, under those bills of lading, and as originally intended, that boiler was duly accepted and transported by the plaintiff in interstate commerce. In so far as Mueller and Dettman were concerned, the work which they had commenced to perform by bringing to the truck the iron plate and roller that were necessary and provided by their employer for unloading such heavy freight, and by assisting in moving the boiler toward the platform, and in replacing the iron plate to facilitate that moving, was all part of the plaintiff’s customary, initial, and necessary service in starting the boiler on the intended interstate transportation. That service was being performed by the plaintiff, through its employees, because that boiler had been duly tendered for transportation over its railroad, and the only transportation then contemplated, and thereafter completed, was the interstate transportation to Kansas City. That boiler was not at
By the Court. — Judgment affirmed.