Ross v. Sheldon

Evans, C. J. I. The plaintiff brought his action under the state law, claiming damages to the estate of the deceased for the wrongful death. Among other defenses, the defendant pleaded that, at the time of the accident which resulted in the death of the decedent, the decedent was engaged as an [620] employee of the defendant in interstate commerce, and that the plaintiff’s rights, if'any, were covered by the Federal Act applicable in such a case. The plaintiff adhered to his petition. At the close of the evidence, various grounds were urged by the defendant in support of the motion for a directed verdict. Inasmuch as the motion was sustained upon the ground already indicated, we shall have no occasion to consider any other question upon this record. 1. ter^tatePfntrareceivingunterstate shipments. The material facts pertaining to the question whether the employment of the decedent at the time of his injury was concerned with interstate commerce are not in dispute. The line of the defendant railway was wholly within the state of Iowa. It operated no trains outside of the state of Iowa. It was . ... ' .. an mterurban electric line extending from Des Moines to Fort Dodge. The decedent was a regular -lineman. He was engaged in the duties of a lineman at the time of his fatal injury. It appears, however, that, by means of connections with other lines of railway, more than 80 per cent of the business of the interurban line was interstate business. It received freight from connecting lines originating without the state and destined to points upon the line of the defendant. The defendant railway was therefore engaged in interstate commerce. It was thus engaged upon the day of the accident. Some point is urged by the appellant that it does not appear that it was thus engaged at the moment of the injury. The evidence does not deal in detail with the business actually moving at the moment of the injury. It does show that a large amount of interstate business was done on that date. If it be material to identify the business in progress at the moment of the injury as interstate business, we think no other inference would be permissible under the facts shown. [621] 2. Commerce : interstate : who deemed en-engaged in: repair of instrumentality. [620] Was the employment of the decedent connected with interstate commerce? The line of defendants’ railway was [621] operated under electric power. Alongside the railway track was its line of poles, all carrying cross-arms. Upon these cross-arms were extended various wires, including telegraph, block signal, power, and feed wires. The decedent was engaged in putting additional cross-arms upon the poles. The intended use of such additional cross-arms was that the signal wire theretofore used should be transferred thereto, and that five or six additional signal wires should be carried thereon. The single signal wire was deemed insufficient for the use of the company. The signal system had been operated by hand. It was now in contemplation to operate the same by an ‘ ‘ automatic, ’ ’ system which would be more efficient than the single wire and the “hand” system. While at work in nailing a cross-arm upon a pole in pursuance of this purpose, the decedent was killed by contact with some of the wires upon the other cross-arms. The contention for the appellee is that the pole and cross-arm and signal wires upon which he was working and in contact with which he met his death were a part of the necessary instrumentalities of defendants’ interstate commerce, and that the injury to the decedent occurred while he was engaged in the work of repair and maintenance. If this is a proper characterization of the work in which the decedent was engaged, then it is quite settled that the plaintiff’s case is covered by the provisions of the Federal Act. On this question, we need look no further for authority than the case of Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146. The evidence in that case was stated in the opinion as follows: “The evidence, in that view of it which must be taken here, was to the following effect: The defendant was operating a railroad for the transportation of passengers and freight in interstate and intrastate commerce, and the plaintiff was an iron worker employed by the defendant in the alteration and repair of some of its bridges and tracks at or near Hobo622 ken, New Jersey. On the afternoon of his injury the plaintiff and another employee, acting under the direction of their foreman, were carrying from a tool car to a bridge, known as the Duffield bridge, some bolts or rivets which were to be used by them that night or very early the next morning in ‘repairing that bridge,’ the repair to consist in taking out an existing girder and inserting a new one. The bridge could be reached only by passing over an intervening temporary bridge at James Avenue. These bridges were being regularly used in both interstate and intrastate commerce. While the plaintiff was carrying a sack of bolts or rivets over the James Avenue bridge, he was run down and injured by an intrastate passenger train, of the approach of which its engineer negligently failed to give any warning.” The following discussion in the opinion is quite relevant to the case before us: “Among the questions which naturally arise in this connection are these: Was the work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was. its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier ? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroads as are engines and cars; and sound economic reasons unite with settled rules of law in demanding that all of thes'e instrumentalities be kept in repair. The security, expedition, and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty ,of exercising appropriate care to prevent or correct ‘ any defect or insufficiency ... in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment’ used in interstate commerce. But independently of the statute, we are of opinion that the work of keeping such instrumentalities in a proper state of [623] repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements, and the nature of each determined regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged ? ... Of course, we are not here concerned with the construction of tracks, bridges, engines or cars which have not as yet become instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities and during their use as such. True, a track or bridge may be used in both interstate and intrastate commerce, but when it is so used it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce. The point is made that the plaintiff was.not, at the time of his injury, engaged in removing the old girder and inserting the new one, but was merely carrying to the place where that work was to be done some of the materials to be used therein. We think there is no merit in this. It was necessary to the repair of the bridge that the materials be at hand, and. the act of taking them there was a part of that work. In other words, it was a minor task which was essentially a part of the larger one, as is the case when an engineer takes his engine from the roundhouse to the track on which are the cars he is to haul in interstate commerce.” There is no appropriate reason why we should attempt to add argument to the foregoing. . Our concern in this class of cases is to follow carefully the law laid down by the Supreme Court of the United States as the one source of judicial authority thereon. [624] The contention of the appellant is that the work in which the decedent was engaged was not repair or maintenance work, but was new construction work. That, there may be a distinction between repair work and construction work is recognized in the Pedersen case, supra. The argument for appellant is that the lines and instrumentalities of the defendants were complete, and, as such, in repair without the addition of new cross-arms, and without the proposed addition of new wires and without the proposed “automatic” system; that, while the automatic system was proposed to be used upon the line (and'therefore in interstate commerce); it had not yet been thus used. The line of demarcation between repair work on one hand and construction work on the other is not always easily discernible. Repair often, if not usually, involves more or less construction and substitution.. It likewise involves betterment and improvement. The recent decisions of the Supreme Court are, in effect, declaring the rules of construction which shall guide all the courts and litigants in determining whether the facts in a given case bring it within the Federal Act. It is highly desirable that such rules attain as great a degree of certainty as practicable, and such is the manifest aim of the high court. To such end, the distinction between “repair” and “construction” work must not be drawn too- fine. The trend of the cases thus far decided indicates that labor and betterment upon an interstate line of railway will not be deemed as new construction work, unless it is clearly such. That is to say, mere doubt will be resolved in favor of “repair and maintenance.” The substitution of a 90-pound rail for a 60-pound rail partakes of the nature both of repair and construction; likewise the substitution of five wires for one or the addition of four wires to one. In the case before us, the new cross-arms were attached to the old poles. They were intended for the support of the old wire and others. They were not an independent construction. They could not stand [625] alone. They had no function to perform except as a part of the electrical system of the defendant railway, which system was in actual operation at the time of the injury. True, substitution had not been actually made, but this was the condition in the Pedersen case. Whether the work is “repair” or “construction” depends somewhat upon the real entity upon which the labor is being wrought. Appellant concentrates his mind upon the new “automatic system,” as distinguished from the old “hand system.” Regarding the “automatic system” as a separate and distinct entity, he naturally argues that it only came into being as a result of new and independent construction. We think, however, that it cannot be regarded as the real entity upon which we must look in passing upon the question before us. The signal sys-, tern, whether “hand” or “automatic,” was a part of the electrical system of the defendants, all of which was carried physically upon the same line of poles. While various functions attached to various wires, yet the decedent, as a lineman, sustained the same relation to each and all, and they each and all sustained the same relation to interstate commerce. The Federal Act in question laid upon the defendant, as a carrier of interstate commerce, not only the duty of mere repair, but the duty to maintain sufficiency in its equipment, The most that can be said in concession to the appellant, is that the defendant was engaged in curing an “insufficiency of equipment,” and that the decedent was engaged in work to that end. We reach the conclusion that the evidence brings the ease within the operation of the Federal Act in question, and that this action, brought by the plaintiff under the state laws, was properly dismissed for that reason. This conclusion is consistent also with those Federal cases which have placed within the contemplation of the Federal Act, section hands and trackmen upon railways used indiscriminately for state and interstate commerce. See Zikos v. Oregon R. & N. Co. (C. C.), 179 Fed. 893; Central R. Co. v. [626] Colasurdo (C. C.), 192 Fed. 901; and the case of Darr v. Baltimore & O. R. Co. (D. C.), 197 Fed. 665, where the same was held as to the repairer of a car used indiscriminately. 3. on defense in abatement: modification to avoid bar. S' adjudgment" II. It should be noted, however, that the form of the verdict and judgment did not indicate the ground upon which they were rendered. The defense sustained was in the nature of an abatement. The judgment ought not to bedeemed a bar to an appropriate action under the Federal Act. The form of the judgment will therefore be modified so that it shall appear upon the face thereof that it was rendered upon the ground herein indicated. In other respects, the judgment will be affirmed. —Modified and Affirmed. Ladd, Gaynor, Preston and Salinger, JJ., concur. Deemer and Weaver, JJ., dissent.