92 W. Va. 172 | W. Va. | 1922
Plaintiff, as administrator of the estate of his son, Calvin 0. Halley, recovered a judgment of $6,000 under the Federal Employers’ Liability Act, for the death of his son, occasioned by injuries received while in the alleged employ of the defendant. Calvin 0. Halley, at the time of his death, was between 19 and 20 years of age and was employed as electrician’s helper in the installation of certain electrical transformers in a sub-station in Huntington. While climbing or standing upon a ladder assisting in the work upon the “dead” transformer being' installed, he, in some way, not made entirely clear by the evidence, came- in contact with an exposed bushing on top of a “live” transformer which stood only a few inches from the ladder, and was killed.
The negligence charged was the placing by defendant or its agents of the ladder in such close proximity to the exposed bushing, the dangerous character of which was unknown to the deceased, and of which, due to his inexperience and youth, he had no means of knowing. Defendant brings error.
Thrée grounds of error are assigned (1) That the evidence shows that Halley was not employed by or in the service of the defendant; (2) that at the time of his death he was not employed in interstate commerce so as to bring him within the provisions of the Federal Employers’ Liability Act, and (3) that the verdict is excessive.
1. We think the. jury was warranted in finding that deceased was in the employment of defendant. At the time of his death he was working at Johnson’s Lane Sub-station. This station had been in operation for a number of years. It was originally owned by. defendant. Defendant’s general manager was permitted to state over plaintiff’s objection that at the time of the accident it was owned by the Consolidated Light, Heat & Power Company, without producing written evidence of the transfer. While this statement was improper, yet it is now immaterial in view of our findings. The record shows that over the door to the sub-station were the letters: “O. V. E. Ry Co.” On decedent’s person was found an em
“OHIO VALLEY ELECTRIC RAILWAY CO. EMPLOYEE’S PASS.
THIS PASS ENTITLES C. 0. HALLEY No.
TO 100 CONTINUOUS RIDES ON ALL LINES. Coupons of this Pass not good if detached. • Good only when signed by
W. R. Power,
General Manager. No. 3545 12-21-19
This book consists of 8 pages and' each page contains 5 tickets — of the same tickets as shown below. Sample
OHIO VALLEY ELECTRIC RAILWAY COMPANY Employee’s Pass
003545
This coupon not good if detached.
W. R. Power, Gen’l Mgr.
CONDITIONS
1st. This pass is void if presented by any other person than the employee in whose name it is issued. 2d. That each coupon is good only for a ride when detached by, or in the presence of the Conductor. 3d. Any violation of the above conditions may cause suspension or discharge, as the management may elect. 4th. That my wages, or salary, may be held by Company for any tickets not returned when I cease to be an employee.
Employee. ’ ’
A short time after his death the railway company delivered to his father two checks, issued in its name, made out in the name of the decedent, covering his wages from December 16 to December 31, 1919, and from January 1 to January 15, 1920.
There are three corporations involved, though but one is a party to this action, namely, the defendant Ohio Valley
2. • Having determined that decedent at the time of his injury was employed by the defendant, the next question is whether he was then employed in interstate commerce, within the meaning of the Federal Employers’ Liability Act. That is the vital point in the ease. Defendant is an interstate electric railway, carrying passengers and freight for hire, and is a common carrier. This is. admitted. Defendant clearly comes within the act. It was then engaged in removing certain transformers with their equipment from the sub-station and replacing the same with other transformers of a different manufacture, as will more particularly hereafter appear; for all practical purposes, we may say this work was being done in defendant’s sub-station. That the title to the substation was in the Power Company makes no difference; we have no doubt that defendant, through its agents or employees, was in charge of the work. It issued passes to those employed there as though they were its own employees, and it paid their wages. ' The Power Company and defendant Railway Company had the same General Manager. There was nothing said or done at any time, so far as the record discloses, that would inform any of the employees engaged there that they were working.for the Power Company; on the other hand, every act indicated that they were working for the defendant, and that defendant was in charge of the sub-station.
The electric power used in propelling defendant’s cars is generated at the station at Kenova. This power is used in operating defendant’s cars in interstate as well as intra
“Install at Huntington sub-station two 11,000 volt oil circuit breakers with arresters and switchboard equipment and do necessary rewiring to 11,000 volt bus and equipment.
Property to be replaced or withdrawn from service through the work under the'estimate is to be accounted for through the store room.”
Exhibit No. 2 says:
“Install at Huntington sub-station 2-500 K. W. railway rotaries with 33000/11000 v. primary transformers and equipment, and remove present three 300 K. W. railway rotaries with transformers and equipment.
Property to be replaced or withdrawn from service through the work under the estimate is to be accounted for through the store room.”
These orders show, as clearly as anything can show, that the work to'be done was repair work; perhaps a better term would be “maintenance work.” The transformers can be treated as enlarged segments of current-carrying wire. These new ones were being installed in place of the old. So far as we can see, in its relation to interstate commerce, it was exactly the same as if the decedent had been putting in a new segment of trolley wire. While decedent was engaged in connecting up one of these new transformers to the “main bus” he was killed. The new transformer had already been put in its place. It was about four feet in diameter, cylindrical in shape, and about seven feet high. True, it had never been used; no electric current had passed through it; but so far as the record discloses, all that needed to be done was to connect it up with the main bus with short wires. That the defendant was doing when the deadly current struck him down. In our view, he was then just as much engaged in the repair or maintenance of the electric line of defendant as if he were reaching up to put in a new piece of trolley wire, and was therefore engaged in the repair of an instrumentality used in the operation of defendant’s ears in interstate commerce. He was employed in interstate commerce or in work so closely related to it as to be practically a part of it. That is the test applied by the United States Supreme Court in Pedersen v. Delaware L. & W. R. Co., 229 U. S. 146, 57 L. ed. 1125, 33 Sup. Ct. Rep. 648, Ann. Cas. 1914-C 153, 3 N. C. C. A. 779. We think the present case can be distinguished from the cases of McKee v. Ohio Valley Elec. Co. 78 W. Va. 131, 88 S. E. 616; Roberts v. United Fuel Gas Co., 84 W. Va. 368, 99 S. E. 549; and, Shanks v. Delaware L. & W. R. Co., 239 U. S. 556, 60 L. ed. 436, L. R. A. 1916-C 797, 36 Sup. Ct. Rep. 188. In the McKee case the workman was killed by a fall of earth while working in an excavation under a wooden trestle on
In Ross v. Sheldon, 176 Ia. 618, 154 N. W. 499, there was along the track of an interstate electric railway a line of poles, with cross-arms carrying various wires, including tele-; graph, block signal, power and feed wires. The signal system 'was operated by hand and was inadequate. The company determined to install a new system by putting 'on additional cross-arms, transferring the old signal wire thereto, with additional wires, and-operating the system by an automatic device. While nailing one of these cross-arms to a pole, decedent came in contact with a live wire on the old cross-arms and was killed. It was held that he was engaged, not in construction work, but in the repair and maintenance ■ of an instrumentality of interstate commerce, and defendant was liable under the Federal Act. The present case is more clearly within the statute than the Ross case. There a new automatic signal system was being installed, and when completed, was to take the place of the hand system, and it was contended there • as here that while the new system was to be used in interstate commerce, it' had not yet been so used. It is argued here that the new transformer had never been used.. But so in the Pedersen ease. The bolts which Peder-sen was carrying with which to repair the bridge had never' been used, but they were to be used in repairing a bridge that had been used in interstate commerce, and it was held that Pedersen was employed in such commerce.'
In Coal & Coke Ry. Co., v. Deal, 231 Fed. 604 (4th C. C.
In such cases it is nearly always difficult to mark out the dividing line between intra-state and interstate commerce and to tell where a given service in the one leaves off or in the other begins. There is what has been aptly termed a “twilight zone,” — a sort of no-man’s land, — where the careless pleader by failing to allege liability both at common law and under the Federal Act, in separate counts, meets with many pitfalls. These troublesome questions could 'be avoided by careful pleading. But when such a question is presented it is the duty of this court to decide it in conformity to the decisions of the Supreme Court of the United States, the final interpreter of the statute. Our judgment is that Halley comes squarely within the 'spirit and letter of the rule laid down by that court in the Pedersen case, and that at the time of his injury he was employed in interstate commerce, hence within the scope of the Federal Employees’ Liability Act.
3. But one question remains, — -is the verdict excessive? This young man was not quite twenty years of age. He had been working away from home for three or four years, except at times when he was not employed, he worked for his father
We therefore affirm the judgment.
Judgment affirmed.