McBain v. Northern Pacific Ry. Co.

MR. JUSTICE HOLLOWAY 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 [581] supplies needed upon the caboose whenever it should he called into service. He started to make the trip on foot, but, a train from the west passing by, he boarded the locomotive and while riding on it was injured. He had completed his previous run some hours before, and anticipated that he would be again called into service soon after noon on the 15th, but whether to handle interstate or purely local freight he had no means of knowing, as he had not been called for duty; his train had not been made up and his caboose was on a siding in the yard awaiting assignment. The action was brought under the Federal Employers’ [1-3] Liability Act (35 Stats, at Large, 65), and plaintiff assumed the burden of pleading and proving that at the time he was injured he was engaged in interstate commerce. The allegation of his complaint is sufficient, but does his proof sustain it? The record presents a federal question, and the decisions of the United States supreme court upon it are conclusive upon this court. Under a state of facts substantially identical with the facts before us, that court held that it is immaterial that the injured party may have been engaged in interstate commerce immediately before he was injured, or that immediately after completing his then present task he would again engage in interstate commerce, and said: “The true test is the nature of the work being done at the time of "the injury.” (Illinois Cent. R. R. Co. v. Behrens, 233 U. S. 473, Ann. Cas. 1914C, 163, 58 L. Ed. 1051, 34 Sup. Ct. Rep. 646.) Applying that test to the facts presented here, and it is apparent at once that plaintiff has failed to make out his case under the federal statute. The character of the supplies he sought furnishes no index to his employment. The fusees, torpedoes and waste were necessary supplies for his caboose, whether it would be employed in interstate or intrastate commerce, and at the time of his injury it was impossible to determine the character of his next assignment, for he had not then been called to duty; the train to which [582] ills caboose would be attached had not then been made up, and the caboose had not been assigned. 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. [583] For the reason given, the judgment and order are reversed and the cause is remanded to the district court, with directions to enter judgment for the defendant. Mr. Justice Sanner concurs. Mr. Chief Justice Brantly, being absent, takes no part in the foregoing decision.