Columbia & P. S. R. v. Sauter

WOLVERTON, District Judge (after stating the facts as above). It is first urged in behalf of the railroad company that there is to be found in the record no sufficient evidence to support plaintiff’s allegations that the defendant negligently and carelessly failed to make provision by props or supports of any kind for holding up and sustaining the broken frame of the bridge when the logs and -timber should be removed. It was a material factor in plaintiff’s case that this allegation should be established by competent proof. Without noticing the evidence particularly, it is sufficient, as this case must be reversed upon another ground, to say that we have examined the testimony and are persuaded that the allegation appears to be amply supported by evidence sufficient to carry the case to the jury. [1] The next contention is that, in prosecuting the work of erecting the temporary structure for use by both railroad companies in passing their engines and trains over Cedar river, the defendant was not engaged in interstate commerce, and hence that the. action could not [607] be maintained upon the theory on which it was instituted, it having been instituted under the federal Employers’ Liability Act. It was admitted, beyond peradventure, at the trial, that the defendant company was engaged in interstate commerce, aside from the particular work in hand, by the following colloquy between counsel: “Air. Judd: If the court please, it was agreed by counsel, so that I need not subpoena here the principal officers of the railroad, that this railroad during the times mentioned in this complaint was engaged in transporting freight in interstate commerce. “Mr. Padden: 'That is admitted, if your honor please. “Air. Judd: That it was a common carrier of freight, of interstate commerce freight; that the railroad as engaged in that business ran over this bridge. “Air. Padden: We do not admit anything further than the railroad was engaged in interstate commerce. “Mr. Judd: Over this bridge and over this right of way. If not, I have been misled by counsel, and I will have to subpoena and call their head officers. “Air. Farrell: What is it you want us to admit? “Mr. Judd: I want you. to admit that you wore taking this interstate commerce along the right of way which crosses this bridge. “Mr. Farrell: We will admit that.” “Both roads,” as counsel for defendant say, “had joined in the construction of this trestle for the purpose of expediting the traffic. The Milwaukee Company was building the trestle from one bank, and the Columbia Company from the other, with the intention of meeting at the center. The deceased was engaged in making clear a space in which piles could be driven, not to support the old bridge, but to support the new trestle.” While it is denied that the defendant company was at the time engaged in any way in constructing the new bridge, it clearly appears from the testimony that it had the new bridge in view at the time, and that the trestle was to serve, not only for a temporary structure for passing engines and trains over in interstate traffic, but also as false works for rebuilding the old bridge. P. C. Brown, superintendent of bridges and buildings for the defendant company, testified: “Q. Tou were building a new bridge in the same place? A. Weil, later on. At that time it was just to get the traffic over. Q. Just for what purpose were you removing the logs and rubbish and stuff that had accumulated around the concrete abutment — what were yon doing that for? A. We were pulling the drift out to get them started with our driver on the east end. The Milwaukee was driving on the west end, and this drift was in the way of our first piles, and all wo had to do was to pull the drift out and start our driver. We did not.intend to do anything with the bridge at all until after we got the traffic across. * * * Q. They were driving the piles for the new temporary bridge? A. Yes, sir; they had one bent driven and were reaching out to get the next.” Later on the same witness testified that the purpose of removing the rubbish was to drive piles for a false work across, and that it was impossible to drive those piles without removing that rubbish. Now, such being the purpose and such the work under way, was the carrying on of the work an engagement in interstate commerce? It has very recently been declared by the Supreme Court that the right to recover, under the Employers’ Liability Act (35 Stat. 65, c. 149), arises only where the injury is suffered while the carrier is engaged in interstate commerce and while the employé is employed by [608] the carrier in such commerce. “The true test always is,” says the court, “is the work in question a part of the interstate commerce in which the carrier is engaged.” Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146, 152, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. The principle has been later reaffirmed. Ill. Cent. R. R. v. Behrens, 233 U. S. 473, 478, 34 Sup. a. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163. Does the case at bar fall within the principle? In the Pedersen Case, supra, the party seeking to recover and another employé, acting under the direction of the foreman, were carrying from a tool car to a bridge some bolts and rivets which were to be used by them in repairing the 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 another avenue. These bridges were each being regularly used, both in intrastate and interstate commerce. While carrying a sack of bolts or rivets over the temporary bridge on his way to the other bridge, the party suing was run down and injured by an intrastate passenger train. Passing upon this state of facts, the court said: “We are only concerned with the nature of the work in which the XDlaintiff was employed at the time of his injury. Among the questions which naturally arise in this connection are. these: Was that 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 railroad as are engines and cars, and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition, and efficiency of the com-, merce 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, axrpliances, machinery, track, roadbed, works, boats, wharves, or other equipment’ used in interstate commerce.”. In Lamphere v. Oregon R. & Nav. Co., 196 Fed. 336, 116 C. C. A. 156, 47 L. R. A. (N. S.) 1, it was held that: “A locomotive fireman in the employment of a railroad company engaged in interstate commerce, who was ordered by his superiors to report at a station to be transported with others to another station to relieve the crew of an interstate train, and who, when approaching the station over a crossing, was struck and killed through the negligence of other servants of the company, also operating an interstate train, was employed in interstate commerce at the time of his death within the meaning of the Employers’ Liability Act.” And in Northern Pacific Ry. Co. v. Maerkl, 198 Fed. 1, 117 C. C. A. 237, another case in this court, it was held that: “Where an employé of defendant, an interstate railroad company, was injured, in part through the negligence of a fellow servant, when working in repair shops connected with an interstate track, engaged in repairing a car used by defendant indiscriminately in both interstate and intrastate commerce as occasion required, defendant was at the time ‘engaged in interstate commerce,’ and the employé was employed by defendant in such commerce.” [609] The analogy of the present ease to these is sufficiently clear to impel us to the conclusion that the defendant was at the time of the accident engaged in interstate commerce in doing the work in hand, and that the plaintiff was employed in such commerce. To the inquiry of the court in the Pedersen Case: “Was that work being done independently of the interstate commerce in-which the defendant was engaged, or was it so closely connected therewith as to be á 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?” — we say here, with that court, “The answers are obvious.” [2] The defendant complains of the following instruction of the court as erroneous, and as affecting it injuriously, namely: “The defendant in this case contends that the decedent assumed all the risks incident to the employment which were open and apparent, and under the evidence claims that the plaintiff cannot recover. You are instructed that, in an action prosecuted under the act of Congress upon which this action is predicated, the doctrine of assumption of risk does not apply to the extent that the employé assumes all the risks which are open, obvious, and apparent, whether the defendant was negligent or not. This act in question made^the defendant liable for injuries resulting from negligence, and it does not make any exception at all. So in this case the decedent, would be charged with the element of danger which this employment occasioned, and would assume the risks which were inherent in the employment and in the work, and which did not comprehend negligence on the defendant’s part, and would not forego the right to recover damages caused by negligence on the part of the defendant.” Employers’ Liability Act, § 3, provides: “The fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé: Provided, that no such employé who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé.” And section 4 provides: “Such employé shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employs.” The court, in the case of Seaboard Air Line v. Horton, 233 U. S, 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, having under consideration these .two clauses of the statute, made this comment: “It seems to us that section 4, in eliminating the defense of assumption of risk in the cases indicated, quite plainly evidences the legislative intent that in all other capes such assumption shall have its former effect as a complete bar to the action. And, taking sections 3 and 4 together, there is no doubt that Congress recognized the distinction between contributory negligence and assumption of risk; for, while it is declared that neither of these shall avail the carrier in cases where the violation of a statute has contributed to the injury or death of the employé, there is, with respect to cases not in this category, a limitation upon the effect that is to be given to contributory negligence, while no corresponding limitation is imposed upon the defense of assumption of risk — perhaps none was deemed feasible.” [610] The phrase used in section 3, namely, “any statute enacted for the safety of employés,” evidently has reference to the federal statutes, such as the Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [Comp. St. 1913, §§ 2605-8612]), the Hours of Service Act (Act March 4, 1907, c. 2939, 34 Stat. 1415 [Comp. St. 1913, §§ 8677-8680]), and the like, and the negligence referred to must be in violation of such statutes, and does not apply to negligence generally. In this same case the court reaffirmed the principle of the common law respecting the doctrine of assumption of risk, which the following declaration indicates: “When the employé does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment, without objection, or without obtaining from the employer or his representative an assurance that the defect will be remedied, the employé assumes the risk, even though it arise out of the master’s breach of duty.” The interpretation of the statute here declared is reaffirmed in the •case of Southern Ry. Co. v. Crockett, 234 U. S. 725, 730, 34 Sup. Ct. 897, 899 (58 L. Ed. 1564) where the court says: “Upon the merits, we of course sustain the contention that by the Employers’ Liability Act the defense of assumption of risk remains as at common law, saving in the cases mentioned in section 4; that is to say: ‘Any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé.’ ” The jury was instructed in the present case, in effect, that under the Employers’ Liability Act of Congress the defendant would be rendered liable for injuries resulting from its negligence, and that to this rule there is no exception. So it was concluded that the decedent was, chargeable with the element of danger which his employment occasioned, and assumed the risks which were inherent'in his employment and work, but that these did not comprehend negligence on the part of the defendant, and that he would not thereby forego the right' to recover damages caused by negligence on the part of the defendant. In other words, the jury was left to infer that, if the defendant were guilty of any negligence at all, or any kind of negligence, contributing to the injury, then the decedent assumed none of the risks incident to his employment. ¡Such is not the law, in view of decisions above cited. The assumption of risk is eradicated only in case the employer is negligent in the violation of some statute enacted for the safety of employés. In other negligence the rule remains as at common law. Other questions are reserved, but they may not arise again on a new trial, and hence we omit their consideration for the present. The judgment is reversed, and the cause will be remanded for a new trial.