160 P. 654 | Mont. | 1916
delivered the opinion of the court.
The plaintiff recovered a judgment in the district court of Silver Bow county, and the defendant appealed therefrom and from an order denying it a new trial.
The facts disclosed by the record and pertinent here are that on October 15, 1912, plaintiff was employed by the defendant as a brakeman on the Paseoe division of the road in the state of Washington and was at the city of Ellenshurg, Washington. The train-crew of which he was a member engaged indiscriminately in handling interstate and intrastate shipments of freight. At the time of his injury plaintiff was going from his caboose to the yard office to present a requisition for
The action was brought under the Federal Employers’
Under the interpretation placed upon this statute by the supreme court of the United States, it is of no consequence that the work performed by plaintiff had to do with interstate commerce to a much greater extent than with purely local shipments. The Congress doubtless had authority, under the commerce clause of the Constitution, to impose upon a carrier engaged in both interstate and intrastate traffic, liability for an injury sustained by its employee in the course of its general work, “whether the particular service being performed at the time of the injury, isolatedly considered, was in interstate or intrastate commerce” (Behren’s Case, above); but Congress did not see fit to exercise its authority to that extent. The Act in question provides: “That every common carrier by railroad while engaging in commerce between any of the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, ’ ’ etc. In further consideration of this feature of the statute the court in the case above said: “Giving to the words, ‘suffering injury while he is employed by such carrier in such commerce’; their natural meaning, as we think must be done, it is clear that Congress intended to confine its action to injuries occurring when the particular service 'in which the employee is engaged is a part of interstate commerce.” At the time he was injured, plaintiff was not engaged in interstate commerce within the meaning of the Federal Employers’ Liability Act as construed by the highest court of the land. (Alexander v. Great N. Ry. Co., 51 Mont. 565, 154 Pac. 914.) Whether he could have succeeded under the statutes of Washington, even though he failed to make out his case under the federal Act, does not appear. The statutes of Washington are not pleaded or relied upon. Plaintiff chose to sue in the courts of this state instead of the courts of the state where his injury occurred, and we cannot take judicial notice of the statute law of a sister state.