| Iowa | Feb 14, 1922
— The appellee operates a terminal railway at Sioux City, which is connected with what is known as “the transfer.” Several lines of railway entering Sioux City deliver cars at this transfer. Such cars are picked up by the appellee at the transfer and transported over its own tracks, by its own engine, to the points of final destination at certain packing plants.
At the time of the injury in controversy, it appears from the evidence that Patrick O’Neill was a member of a switching-crew employed by the appellee. The switching crew had been to the transfer and had taken charge of a string of cars, part of which were to be delivered at the plant of the Cudahy Packing Company, and part at the plant of the Armour Packing Company. The portion of the train to be switched to the Armour plant consisted of nine cars. These were placed on a track belonging- to the appellee, leading to said plant. After said cars had been so placed, all of the switching crew except O’Neill took the cars that were intended for the Cudahy plant, and placed the same at said plant. Thereafter, the crew, with the engine, returned to the switching track, where the nine cars destined for the Armour plant had been placed. The evidence shows that, when these cars were first placed upon this track, O’Neill was last seen upon the rear car of said string. These cars were left standing about 25 car lengths north from the gate of the Armour yard, at the time the remainder of the crew went to place the other cars at the Cudahy plant. It appears that it was O’Neill’s duty to properly set the switch so that said cars could be moved to the Armour plant, and to open a gate or entrance leading to the Armour plant. It is shown that O’Neill had performed both acts.
It is urged by appellant that there is no sufficient competent evidence in the record to show that car No. 244 was being moved by appellee in interstate commerce at the time that O’Neill was killed. The car inspector employed at the Sioux City Terminal Company testified that car No. 244 came to the terminal over the Chicago, Milwaukee & St. Paul railroad. The yard clerk of the Milwaukee road produced the train record of July 4, 1915, from which it appeared that train No. 63 arrived from the east on July 3, 1915, and that car No. 244 was in said train, and that the shipment of said car originated at Station No. 4 in the Union Stockyards in Chicago, and that it was consigned to the Armour Packing Company at Sioux City. The witness testified that the train record book in which said entry appeared was not made by him, and that he did not know in whose handwriting it was made, but that it was one of the rée
There was also evidence tending to show that the records of the waybills received by Armour & Company showed that said car No. 244 was at said time engaged in mierstate commerce. The competency of this evidence is challenged by the appellant. It may be true that some of this evidence offered by the appellee in regard to the interstate character of the shipment of car No. 244 was not in strict compliance with the rules of evidence, as recognized in courts of record, but there was sufficient competent evidence, aside from that which is challenged, to warrant the finding of the industrial commissioner and of the district court that the decedent was engaged in interstate commerce.
A majority of the arbitration committee denied appellant’s claim. On appeal, the industrial commissioner also denied the claim, and upon appeal from his finding, the district court of Woodbury County likewise denied the appellant the relief sought.
Section 17, Chapter 270, of the Acts of the Thirty-seventh General Assembly, provides, in part, as follows:
“The findings of fact made by the industrial commissioner within his powers shall, in the absence of fraud, be conclusive, but upon such hearing the court may confirm or set aside such order or decree of the industrial commissioner, if he finds: * * *
“(4) That there is not sufficient competent evidence in the record to warrant the industrial commissioner in making the order or decree complained of.”
We have had occasion to construe this statute, and have held that the finding of the commissioner stands upon the same footing as the finding of a judge or a verdict of a jury, and that it is not to be set aside if there is evidence upon which the finding can rest. We have also approved of the rule that, if the evidence in the case supports the finding of fact as made by the commissioner, the court will not say that the commissioner acted
In Flint v. City of Eldon, 191 Iowa 845" court="Iowa" date_filed="1921-06-25" href="https://app.midpage.ai/document/flint-v-city-of-eldon-7119332?utm_source=webapp" opinion_id="7119332">191 Iowa 845, we said:
“ It is not within the legislative scheme to make a court the reviewer of the facts, and it has been repeatedly held that the court is forbidden to trespass upon the defined jurisdiction of the commissioner, the latter being the sole judge and the final judge of the facts. ’ ’
Applying this rule to the instant case, we find from,the record substantial competent evidence to sustain the findings of fact of the commissioner that the car No. 244 which the decedent was engaged in switching at the time of the accident was at said time being moved in mierstate commerce.
In New York C. & H. R. R. Co. v. Carr, 238 U.S. 260" court="SCOTUS" date_filed="1915-06-14" href="https://app.midpage.ai/document/new-york-central--hudson-river-railroad-v-carr-98508?utm_source=webapp" opinion_id="98508">238 U. S. 260, the Supreme Court of the United States very properly said:
“But owing to the fact that, during the same day, railroad employees often and rapidly pass from one class of employment to another, the courts are constantly called upon to decide those close questions where it is difficult to define the line which divides the state from interstate business. * * * But the matter is not to be decided by considering the physical position of the employee at the moment of injury. If he is hurt in the course of his employment while going to a car to perform an interstate duty, or if he is injured while preparing an engine for an interstate trip, he is entitled to the benefits of the Federal Act, although the accident occurred prior to the actual coupling of the engine to the interstate ears.”
nation at the time of the accident. The act of the decedent, as a switchman, was one of the instrumentalities necessary to complete this act
of transportation. It was, therefore, an act in interstate commerce. Bhodes v. Ioiua, 170 U.S. 412" court="SCOTUS" date_filed="1898-05-09" href="https://app.midpage.ai/document/rhodes-v-iowa-94872?utm_source=webapp" opinion_id="94872">170 U. S. 412; McNeill v. Southern B.
It is argued that ear No. 244 was empty at the time, and hence not in interstate commerce. If the car was being transported in interstate commerce from its point of shipment in the stockyards in Chicago to the Armour packing plant at Sioux City, Iowa, it makes no difference whether it was empty or loaded at the time the decedent received his injury. North Carolina R. Co. v. Zachary, supra; Chicago, R. I. & P. R. Co. v. Wright, 239 U.S. 548" court="SCOTUS" date_filed="1916-01-10" href="https://app.midpage.ai/document/chicago-rock-island--pacific-railway-co-v-wright-98612?utm_source=webapp" opinion_id="98612">239 U. S. 548.
The cases cited by counsel for the appellant do not controvert the propositions above stated, nor their applicability to the facts in the instant case. In Illinois C. R. Co. v. Behrens, 233 U.S. 473" court="SCOTUS" date_filed="1914-04-27" href="https://app.midpage.ai/document/illinois-central-railroad-v-behrens-98171?utm_source=webapp" opinion_id="98171">233 U. S. 473, the particular service in which the employee was engaged at the time was wholly with regard to inirastate freight from one part of the city to another, and the court held that this was not a service in inter state commerce, and so the injury was not within the Federal statute.
In Chicago, B. & Q. R. Co. v. Harrington, 241 U.S. 177" court="SCOTUS" date_filed="1916-05-01" href="https://app.midpage.ai/document/chicago-burlington--quincy-railroad-v-harrington-98727?utm_source=webapp" opinion_id="98727">241 U. S. 177, the employee was engaged in moving coal from storage tracks to coal chutes, and was not at the time engaged in interstate commerce, even though the coal had been previously brought from another state.
In Lehigh Val. R. Co. v. Barlow, 244 U.S. 183" court="SCOTUS" date_filed="1917-05-21" href="https://app.midpage.ai/document/lehigh-valley-railroad-v-barlow-98953?utm_source=webapp" opinion_id="98953">244 U. S. 183, the em
Other cases are of like characfer.
It being established that the decedent, at the time of the accident, was engaged in mierstate commerce, it follows that the Federal Employers’ Liability Act controls the right to compensation, to the exclusion of the provisions of the Workmen’s Compensation Act of this state. New York C. R. Co. v. Winfield, 244 U.S. 147" court="SCOTUS" date_filed="1916-03-01" href="https://app.midpage.ai/document/new-york-central-railroad-company-v-winfield-98950?utm_source=webapp" opinion_id="98950">244 U. S. 147. It therefore follows that the judgment of the district court must be, and the same is, — Affirmed.