248 P. 501 | Cal. | 1926
This appeal is prosecuted by the plaintiff from a judgment in defendants' favor after motion *128
for nonsuit made and granted in the trial court. The action is one in which the plaintiff as administratrix of the estate of Gustave C. Johnson, deceased, and for the benefit of herself as his widow and of his two daughters, seeks to recover damages for injuries resulting in his death through the alleged negligence of the defendants. The deceased, at the time of receiving such injuries and of his death therefrom, was employed by the defendant Southern Pacific Company in the capacity of a switchman and was engaged in moving a train of freight-cars westerly from the belt-line of the state railroad along King Street, in the city of San Francisco, to the Mission Bay yards of the defendant in said city. It is expressly conceded that the collision which caused the death of the decedent occurred through the negligence of another employee of the defendant, and the only question presented in the case upon motion for nonsuit and upon this appeal is as to whether the train of cars upon which the deceased was riding in the course of his employment at the time of his injuries was engaged in interstate or intrastate commerce. If the former, the superior court would have jurisdiction to entertain this action under the provisions of the federal Employers' Liability Act; if the latter, the sole original jurisdiction would be in the state Industrial Accident Commission. The case as to the principles of law involved resembles in its main aspects the case of Mappin v. Atchison, Topeka Santa Fe Ry. Co.,
recently decided by this court (
From the foregoing undisputed facts, the conclusion would seem to be irresistible that at no time prior to the collision which caused the injuries and death of the decedent had these two cars or either of them taken on the quality *135 of either vehicles or parcels of interstate commerce in so far as the relation of the defendant to them or to their destination was concerned. This being so, it must be further concluded that as to the train of cars upon which the decedent was employed and was riding at the time of his fatal injuries, the defendant was not in their transportation at the time of such collision engaged in interstate commerce; and this being so was not subject to the jurisdiction of the state courts in this form of action for damages to its employee which were the result of such collision.
The defendants' motion for nonsuit was therefore properly granted and the judgment based thereon is accordingly affirmed.
Shenk, J., Curtis, J., Seawell, J., Waste, C.J., and Lennon, J., concurred.