Sullivan v. Chicago, Milwaukee & St. Paul Railway Co.

Maeshall, J. The question presented here is this: Is labor in the preparation of material or 'articles designed to be, when ready therefor, transported from the state where such labor is performed to another state, for use of the carrier when needed, a part of interstate commerce ? [587] In deciding tbe question suggested, it will promote clearness to abstain from more than referring, briefly, to cases where the federal supreme court has had to do with the matter. There are several classes, — those which deal with labor on instrumentalities, of interstate transportation; those which deal with subjects of interstate commerce; those which deal with prospective subjects of interstate transportation, and others. Authorities as to one class, often do not aid much, if' at all, in solving a controversy falling within another. Here we have to deal with, When do movables become the subject of interstate commerce so that work in respect thereto is a part of such commerce? Do they so become while the work of preparation therefor is still in pi-ogress ? If so, it is easy to see that such commerce reaches out' so far as to include a large part of manufacturing business. It would lead to the conclusion that whenever a person is at work in the production of anything for transportation outside his state, he is engaged in interstate commerce. That would include a miner working. in the mines, lumbermen working in the woods, a factory employee, and any other of many classes of persons which might be named, in case of the purpose being to produce something for interstate transportation. That result would be so unreasonable as to condemn the idea utterly. Without going into the technique of the matter, we will state our conclusion to be that work of preparing articles for interstate commerce is not a part of such commerce within the meaning of the federal Employers’ Liability Act, and that such conclusion is required by the logic of Shanks v. D., L. & W. R. Co. 239 U. S. 556, 36 Sup. Ct. 168; Coe v. Errol, 116 U. S. 517, 6 Sup. Ct. 475; The Daniel Ball, 10 Wall. 557, 565; U. S. v. E. C. Knight Co. 156 U. S. 1, 15 Sup. Ct. 249; Delaware, L. & W. R. Co. v. Yurkonis, 238 U. S. 439, 35 Sup. Ct. 902; Zavitovsky v. C., M. & St. P. R. Co. 161 Wis. 461, 154 N. W. 974. Delaware, L. & W. R. Co. v. Yurkonis is particularly in point. It was there held that an employee of a railroad, min [588] ing coal with which to operate its locomotives used in interstate commerce, is not engaged in such commerce, or work so closely related to it as to be a part thereof. Coe v. Errol seems to declare the rule we have stated. It excludes from the field of interstate transportation all preliminary work in putting property in a state of preparation and readiness therefor. By leaving the matter concisely disposed of as we have, the federal supreme court, if it shall be called upon to deal with the matter, can do so with a minimum of labor, a clear understanding of the precise situation presented, and this court’s opinion in respect thereto. The trial court having erred in directing the verdict upon the ground that deceased, when injured, was engaged in interstate commerce, the judgment must be reversed unless it clearly appear to be right upon some other ground. The defense of assumption of the risk was not available to defendant. Sub. (1), sec. 2394 — 1, Stats. Under the comprehensive requirement of sec. 2394 — 48, Stats. 1915, as regards the duty of employers to protect their employees from danger of personal injury, the question of whether respondent was actionably negligent was for the jury. Sparrow v. Menasha P. Co. 154 Wis. 459, 143 N. W. 317; Rosholt v. Worden-Allen Co. 155 Wis. 168, 144 N. W. 650; Kelly v. Kneeland-McLurg L. Co. 161 Wis. 158, 152 N. W. 858. The evidence showed that there were more than four employees working in the common employment. So the defense of contributory negligence was not available to respondent. Sub. (3), sec. 2394 — 1; Rosholt v. Worden-Allen Co. 155 Wis. 168, 144 N. W. 650. If respondent was negligent, it was evidently because of failure to comply with sub. 1, sec. 2394 — 49, Stats., which was enacted for the safety of employees, and it is also evident that the deceased was neither a shop nor office employee. So [589] it does not seem material whether the case falls under sub. (3), sec. 2394 — 1, or sec. 1816, Stats. It falls under one or both. In neither case would the defense of assumption of the risk, or contributory negligence, be available to respondent. Therefore the judgment is wrong from any viewpoint we can take of it. By the Court. — The judgment is reversed, and the cause remanded for a new trial.