93 Wash. 416 | Wash. | 1916
Appeal from a judgment in favor of respondent upon verdict in his favor. The action was brought under the Federal employers’ liability act, and the first question to be determined is whether or not respondent was, at the time of his injury, engaged in interstate commerce and, therefore, within the act. If he was not so engaged, then this action must fail.
Respondent was employed by appellant as a laborer. On the day in question, he was directed to go down to appellant’s
At the time of the accident, respondent was up on the scaffold putting the planks in place, and Wood and Casey were below passing them up. Wood noticed that one of the four-by-fours already in place was showing signs of breaking, and he and Casey went out to the pile of lumber and obtained another timber to place under the defective four-by-four as a brace. This was done, and while the brace was being held in place by the men below, Wood directed respondent to nail its upper end to the four-by-four. Respondent proceeded to do so, kneeling upon a plank, when the four-by-four broke and he fell to the floor. These facts will be sufficient to determine the question suggested.
Respondent, having resisted a removal of his case to the Federal courts upon his right to sue in the state court under the Federal statute, elected as between a right of action at common law and one under the Federal act and must abide by his election as fixing the law of the case. Baird v. Northern Pac. R. Co., 78 Wash. 67, 138 Pac.. 325.
The freight shed itself, as a storehouse and place for the handling of interstate commerce, is conceded by appellant to
We again passed upon the character of employment necessary to bring the servant under the Federal act in Bolch v. Chicago, Milwaukee & St. Paul R. Co., 90 Wash. 47, 155 Pac. 422, where a switchman was injured while engaged in the removal of cars from one repair track to another, and sustained the action because of testimony that one of the cars being
Adopting this liberal rule of interpretation, the facts here presented do not come within it. The building of a scaffold' in a freight shed upon which a workman is to stand while painting the roof has no direct or immediate connection with interstate commerce, nor is it a necessary incident in furthering the movement of interstate freight. It may be admitted-that the freight shed is an instrumentality made use of in interstate commerce, but the respondent was not at work upon the freight shed. His act was at least one step removed from any connection with interstate commerce or any of its instrumentalities, either directly or indirectly.
This view is in harmony with that expressed in Illinois Cent. R. Co. v. Rogers, 221 Fed. 52, where it was held that a-workman engaged in cleaning stencils used in the manufacture and repair of interstate cars was not' entitled to the protection of the Federal act. It is likewise sustained by Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, L. R. A. 1916C 797. There a workman employed in the railway machine, shops where repairs were made to engines operated in interstate commerce was injured while moving a heavy shop fixture used in repair work. It was held that the connection between.
Respondent relies upon Columbia & P. S. R. Co. v. Sauter, 223 Fed. 604. It there appears that the railroad company was building a trestle across Cedar river to serve as a temporary structure for passing trains engaged in interstate traffic, and as a falsework for rebuilding an old bridge. An employee was at work in making a clear space in which piles could be driven among logs and debris that had drifted against a supporting truss, when the bridge fell upon him. The court held that the employment was in interstate commerce. This case can be readily supported under all the cases. The trestle was an undoubted instrumentality of interstate commerce, and the driving of piles and the clearing of the necessary space through which they could be driven was a necessary incident in the building of the trestle. The abundant reason for this holding does not, in our judgment, support respondent’s position.
Eng v. Southern Pac. R. Co., 210 Fed. 92, is also relied upon. The injured workman was there employed in construct
Many other cases are cited where workmen were injured while working upon repair shops, roundhouses, stations and outhouses, all of which were held to be instrumentalities of interstate commerce. These cases would be authority here if respondent were working upon the freight shed.
We cannot escape the conclusion that the respondent was not engaged in interstate commerce, and for this reason his action must fail.
The judgment is reversed, and the cause remanded with directions to dismiss.
Mount, Fullerton, and Ellis, JJ., concur.
Chadwick, J., concurs in the result.