72 Wash. 503 | Wash. | 1913
Action by the administrator of the estate of Wilbur F. Horton, deceased, for the benefit of the surviving widow and children of decedent, to recover damages for wrongful death under the Federal employers’ liability act.
The first section of the employers’ liability act of 1908, 35 U. S. Stats, at L., p. 65, ch. 149, provides:
“That every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such- employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”
The sole question presented for our consideration is this: Was the decedent employed by the defendant in interstate commerce at the time of his death, so as to enable his representatives to invoke the benefit of this act? The earlier act of 1906 (34 Stats, at L., p. 232), was, in the Employers’ Liability Cases, 207 U. S. 463, held unconstitutional as exceeding the power of Congress under the commerce clause of the constitution, in that it imposed a liability as against all common carriers engaged in interstate commerce in favor of any of their employees, without restriction and whether their employment did or did not pertain to interstate commerce. In those cases, however, all the justices concurred in recognizing the power of Congress to regulate the relation of master and servant by regulations confined to interstate commerce and services connected therewith. The act of 1908 above quoted was passed to conform to that decision, and should, therefore, be construed as including within the term,
The inquiry is thus narrowed to the concrete question, Had Congress the constitutional power to enact a law regulating the relation between a common carrier engaged in interstate commerce and its servant who is employed in pumping water used by its engines both for interstate and intrastate commerce? If Congress had this power, then we must assume that it intended to exercise it in passing the present act. In determining the extent of the power of Congress and the consequent extent of the exercise of that power by this act, we are bound, whatever our personal views, by the decisions of the Federal courts. We are not called upon to decide whether, if an injury be inflicted by a person or instrumentality employed by the defendant in intrastate but not in interstate commerce, the act could in any event be invoked, since the case is here on demurrer and the complaint alleged that the train, and by necessary inference its crew, was employed in interstate commerce. It may be remarked in passing, however, as showing the sweepingly broad construction placed upon the act and the true criterion of the congressional power, that in the Second Employers’ Liability Cases, supra, the supreme court expressly decided that the fact that the negligence which caused the injury was that of an employee engaged in intrastate commerce was immaterial, the true criterion being the effect of the injury upon interstate commerce, not the source of the injury.
As to the character of service in which the injured servant must be engaged in order to be subject to the congressional
In Darr v. Baltimore & O. R. Co., 197 Fed. 665, the plaintiff’s regular work was the making of what is called “running repairs.” An engine and tender used in hauling interstate trains had reached the end of their run, and were placed upon a fire track to await the time for starting upon the return trip. The plaintiff, while replacing a bolt lost from a brake shoe of the tender, was injured through the negligence of a fellow servant. It was held that he was employed by the carrier in interstate commerce and entitled to the benefit of the act.
In the foregoing instances, so far as the opinions show, the employment of the injured servant related solely to instrumentalities used in interstate commerce. There are, however, numerous cases in which it is held that, where the service of the injured servant contributed indiscriminately to both the interstate and the intrastate business of the carrier-master, the injured servant is entitled to the benefit of the act.
In Zihos v. Oregon R. & Nav. Co., 179 Fed. 893, the plaintiff, a section hand, was injured while employed in repairing.
“But the track of a railroad company engaged both in interstate and intrastate commerce is, while essential to the latter, indispensable to the former. It is equally important that it be kept in repair. Where the traffic itself is not in fact interstate, although upon a railroad engaged in commerce between the states, such as trains devoted entirely to local business and wholly within the boundaries of a state, a different case is presented. There it is possible to identify what is and what is not interstate; but where, as in this case, a road is admittedly engaged in both, it becomes impossible to say that particular work done results directly for the benefit of one more than the other. Manifestly it is for the accommodation of both. To hold, then, that a workman engaged in repairs upon the track of such a carrier is. not furthering interstate commerce would be to deny the power to control an indispensable instrument for commercial intercourse between the states — to deny the power of Congress over interstate commerce — but that the power extends to the control of those instrumentalities, through which such commerce is carried on is not an open question. . . . But where the employment necessarily and directly contributes to the more extended use and without which interstate traffic could not be carried on at all, no reason appears for denying the-power over the one, although it may indirectly contribute to the other. The particular question is an apt illustration of the intricacies to which our dual system of government often leads; but the intricacy is but an incident, and it can neither defeat nor impair the power of Congress over interstate commerce. Since the track,- in the nature of things, must be maintained for commerce between the states, the work bestowed upon it inures to the benefit of such commerce. It is therefore subject to federal control, even though it may contribute to carriage wholly within the state. Being inseparable, yet interstate commerce inherently abiding in the thing*509 to be regulated, as to the track, the state jurisdiction must give way, or at least it cannot defeat the superior power of Congress over the sub j ect-matter .whenever a carrier is using, the track for the double purpose.”
In Colasurdo v. Central R. Co., 180 Fed. 832, plaintiff, a railroad trackman, was assisting in the repair of a switch in a railroad yard at night, the switch being used indifferently for both kinds of commerce, when he was struck and injured by certain cars. The court, holding that he was within the protection of the act, said:
“The track is none the less used for interstate commerce, because it is also used for intrastate commerce, and the person who repairs it is, I think, employed in each kind of commerce at the same time.”
This decision was, on writ of error, affirmed by the circuit court of appeals in Central R. Co. v. Colasurdo, 192 Fed. 901, that court saying:
“We think the statute was intended to apply to every carrier while engaging in interstate commerce, and to an employe of such carrier while so engaged, and, if these conditions concur, the fact that the carrier and the employe may also be engaged in intrastate commerce is immaterial.”
In Behrens v. Illinois Cent. R. Co., 192 Fed. 581, the plaintiff’s intestate was fireman of. a switching crew whose duty it was to switch cars that had to move both in interstate. and intrastate commerce indiscriminately. At the time of the accident, the train.being moved originated within the state, and the freight carried constituted intrastate commerce. It was contended that neither the defendant nor the deceased employee was at the time engaged in interstate commerce so as to permit a recovery under the employers’ liability act. The court said:
“In my opinion the construction sought to be secured by the defendant is entirely too narrow and restricted. , Undoubtedly the act of Congress is in derogation of the common law; but certainly the elimination of the doctrine of fellow*510 servant and the modification of the doctrines of contributory negligence and assumed risk makes for the betterment of human rights as opposed to those of property, and I consider that, in the light of modem thought and opinion, the law should be as broadly and as liberally construed as possible. In this view of the case, I consider that the usual and ordinary employment of the decedent in interstate commerce, mingled though it may be with employment in commerce which is wholly intrastate, fixes his status, and fixes the status of the railroad, and the mere fact that the accident occurred while he was engaged in work on an intrastate train, rather than a few minutes earlier or later, when he might have been engaged on an interstate train is immaterial. If he was engaged in two occupations that are so blended as to be inseparable, and where the employe himself has no control over his own actions and cannot elect as to his employment, the court should not attempt to separate and distinguish between them.”
In Northern Pac. R. Co. v. Maerkl, 198 Fed. 1, the plaintiff’s intestate, a car repairer employed in the defendant’s repair shops connected with an interstate track, was injured while engaged in repairing a car used by the defendant indiscriminately in both interstate and intrastate commerce. The circuit court of appeals, in aifirming the decision of the district court that the act applied, after pointing out that the car was one of the instruments of interstate commerce, said:
“It is equally plain, we think, that those engaged in the repair of such a car are as much engaged in interstate commerce as the switchman who turns the switch that passes the car from the repair shop to the main track to resume its place in the company’s system of trafile, or any of the operatives who thereafter handle it in such traffic.”
See, also, Johnson v. Great Northern R. Co., 178 Fed. 643; Freeman v. Powell (Tex. Civ. App.), 144 S. W. 1033; Jones v. Chesapeake & O. R. Co., 149 Ky. 566, 149 S. W. 951.
But it is urged that, even assuming that the employment of the deceased when actually pumping water was so related to
“He was on the premises of the railroad company and in the discharge of his duty when he met his death, and the train which struck him and caused his death was engaged in interstate commerce, and belonged to the same railroad company. Must a fireman be actually in his place of duty on the locomotive of a train which is engaged in commerce between the states in order that he may be said to be employed in interstate commerce? If he is commanded to step down from his train and proceed across the track and take his place on another train engaged in interstate commerce and he is injured while on the way, will it be said that he was not employed in interstate commerce when he received the injury? The case supposed is substantially the case which is now before the court.”
Nor can we see any real distinction between the case quoted and the one before us.
“The decision in that case runs counter to the cases above cited, and we think it is also opposed to the doctrine of the recent decision of the supreme court in Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1.”
In our own decision in Tsmura v. Great Northern R. Co., we did not have the advantage of the foregoing authorities, which it will be noted are all recent. Moreover, as we there said:
“It is not shown whether the rails were old or new, where they came from, where they were to be taken, or where the car was to go' when loaded.”
In so far, however, as that case may be construed as running counter to the foregoing decisions, we are constrained by the overwhelming weight of those authorities to overrule it.
. Tested by the criterion laid down in the Second Employers’ Liability Cases, supra, and exemplified in the foregoing decisions, namely, by the effect of the injury upon interstate commerce, it seems to us too plain for cavil that the deceased when killed was employed by the carrier in such commerce, within the meaning of the act. Was the relation of his employment to interstate commerce such that an injury to him tended to delay or hinder the movement of trains engaged-in such commerce? There is but one answer to the question. Water to" supply the engines pulling such trains had to be pumped as a necessary incident to the movement of trains! If,- when he was killed," his ".place had not 'been supplied by another, the movement of trains engaged in interstate com
The judgment is reversed, and the cause is remanded for further proceeding in accordance with this opinion.
Ceow, C. J., Main, Moeeis, and Fitlleeton, JJ., concur.