REIF v. SCHUMACKER (1940)

The defendants appeal on a bill of exceptions from a judgment for plaintiff following a verdict for $20,000 for injuries incurred in the course of his employment as a switchman for the Western Pacific Railway. The defendants are trustees of the employer railroad corporation, pursuant to the provisions of section 77 of the National Bankruptcy Act, 11 U.S.C.A. § 205, and are sued in that capacity.

The plaintiff was injured when he fell from the lead end of a string of twelve box cars which were being pushed by an engine in the course of switching operations in the company's yard at Portola, Calif. At the time of the accident plaintiff was walking along the top of the lead car preparing to set the brakes when the cars came to a stop. Application of the brakes on the engine caused the slack in the line of cars to run out, and this caused the lead car to stop suddenly, and plaintiff thereupon lost his balance and was thrown or fell from the car.

The appellants raise numerous grounds for a reversal, but since the parties are in accord that there can be no recovery unless appellant and respondent were, at the time of the injury, engaged in interstate commerce, we will limit the opinion to a discussion of that issue.

The test of the employment which determines the status of the employee in an action of this kind is “was the employee, at the time of the injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it”. Shanks v. Del., Lack. & West. R.R., 239 U.S. 556, 558, 36 S.Ct. 188, 189, 60 L.Ed. 436, L.R.A.1916C, 797; Chicago & N.W.R. Co. v. Bolle, 284 U.S. 74, 52 S.Ct. 59, 76 L.Ed. 173. Switching operations within the company's yard which include the movement of a car later assigned to interstate transportation are purely local and intrastate. Scott v. I.A.C., 9 Cal.2d 315, 318, 70 P.2d 940. And, since the status of the interstate employment goes to the jurisdiction of the court, the burden of proof is on the employee to show that, at the time of the injury, he and his employer were engaged in interstate commerce. Rice v. Baltimore & O.R. Co., 6 Cir., 42 F.2d 387; McCoy v. Southern Pacific Co., 29 Cal.App.2d 16, 20, 83 P.2d 970. The interstate status may not be presumed or inferred from the fact that the employer is engaged generally in interstate commerce; the presumption is that while in the use and operation of its railway within the state the employer was engaged in intrastate commerce. Johnson v. Southern Pacific Co., 199 Cal. 126, 131, 248 P. 501, 49 A.L.R. 1323.

At the request of respondent the trial court withdrew from the jury the question whether the parties were engaged in interstate commerce at the time of his injuries, instructed the jury that as a matter of law they were so engaged, and refused all appellants' proposed instructions to the effect that it was necessary to so find before respondent could recover. This was in effect a directed verdict on a special and material issue, and hence the evidence must be viewed in the light most favorable to the appellants. Estate of Lances, 216 Cal. 397, 14 P.2d 768; Estate of Flood, 217 Cal. 763, 768, 21 P.2d 579.

Respondent was a regular employee of a switching crew stationed at the Portola yards. The crew went to work at 11:59 p.m., June 29, 1937; at 6:35 a.m. of the 30th the respondent was injured; the shift on which he was employed ended at 8 a.m. of that day. Sometime during the period before midnight of the 30th of June a train, designated the Keddie local, left Portola carrying a freight car which contained shipments stipulated to have been interstate commerce. The parties agree that the injuries occurred during switching operations in the freight yard for the purpose of replacing local cars on a storage track from which they had been removed to reach three local cars which had been designated to be put into the Keddie local. The parties also agree that these switching operations continued throughout the night and early morning of the 30th, but they fail to agree, and respondent has failed to prove, at what period of time the interstate car was designated to become a part of the Keddie local, at what time it was made a part of that train, or what crew of workmen attached the car to the local. The parties stipulated as to the number of the car which carried the interstate commerce, the respondent presented a switch list with evidence to prove that such a list was the official designation of all cars to the particular train, that when the switch list was handed to the foreman that was the “designation” of the car which determined the interstate character of the employment. But the interstate car was not on this switch list, and, though the list was used at the trial by respondent's witnesses, it was not offered in evidence. Thus there was no evidence to show when the interstate car was designated for the Keddie local.

The case made out by respondent in short is—that the switching crew of which he belonged made up a local train, that, at an undisclosed time after his injury this train left the yards carrying a car containing interstate commerce; that respondent does not know when or how the car was attached to the train or who put it there, that the switch list, which was an assignment of the duties of respondent's crew, made no mention of the interstate car. Since the presumptions and inferences are all with appellants on this issue, we must presume that the railway company “while in the use and operation of its railway within the state was engaged in intrastate commerce” Johnson v. Southern Pacific Co., supra [199 Cal. 126, 248 P. 502, 49 A.L.R. 1323], there being no competent evidence that appellants were engaged in interstate commerce at the time of the injury.

Thus, when the trial court, at respondent's request, instructed the jury that “At the time and place of the alleged injury to plaintiff, both the plaintiff and defendant were engaged in interstate commerce”, it not only took from the jury the decision on a disputed question of fact, but it acted upon evidence which was so far short of competent proof that the prejudice to appellants is apparent. We cannot escape the conclusion that respondent's failure to meet the burden of proof of the essential element of interstate commerce necessary to give the court jurisdiction of a negligence action demands a reversal. Other questions raised do not require consideration at this time.

The judgment is reversed.

NOURSE, Presiding Justice.

We concur: STURTEVANT, J.; SPENCE, J.