SOUTHERN PAC CO v. INDUSTRIAL ACCIDENT COMMISSION ET AL (1941)

This is an application for a writ of review for the purpose of having annulled an award made July 20, 1940 by the Industrial Accident Commission. The first finding on which said award was based was as follows:

“1. R. P. Rodgers, born March 28, 1896, while employed as a switchman on November 3, 1939, at Los Angeles, California, by Southern Pacific Company, a corporation, sustained injury arising out of and occurring in the course of his employment proximately resulting in his death on the same day. At the time of said injury the employer was self–insured, and both employer and employee were subject to the provisions of the Workmen's Compensation Insurance and Safety Laws of the State of California.” St.1937, p. 265 et seq., § 3201 et seq.

It is a companion case to Southern Pacific Company v. Industrial Accident Commission et al., 113 P.2d 763, Civil No. 11595, this day filed. The facts are somewhat different, but the legal principles involved are the same as those controlling in Civil No. 11595. The statement of facts as set forth by the petitioner is conceded to be substantially correct. We quote from the petition:

“1. Petitioner is a common carrier by railroad in interstate commerce in the respects hereinbefore more fully alleged. Los Angeles, California, is one of the important stations and terminals upon its lines, through which petitioner handles and transports a large volume of commerce, both interstate and intrastate. Petitioner also interchanges a substantial volume of such commerce with other interstate rail carriers at Los Angeles.

“2. The petitioner's railroad freight terminal yard at Los Angeles, in which decedent was employed at the time of his death, was and is an integral and essential part of the railroad system of petitioner, continuously used by and useful to it in the conduct of its aforesaid business as a railroad common carrier. The particular yard or locality in which the accident actually occurred, resulting in decedent's death, was a subordinate yard locally known as the ‘bull ring’, which was an integral part of the larger railroad yard constituting petitioner's railroad freight terminal at Los Angeles.

“Said bull ring consisted of numerous switching and storage tracks; and its primary and daily use by petitioner on November 3, 1939, the date of said accident, and continuously theretofore, was for the following purposes:

“(a) As a place where main–line freight trains including cars moving in either intrastate or interstate commerce might be and were received, and ‘broken up’ by switching the cars therein, upon arrival at the Los Angeles terminal, or ‘made up’ prior to their departure, for movement out of said terminal;

“(b) As a place where cars moving in either intrastate or interstate commerce, and containing freight for delivery to consignees at Los Angeles, or empty cars intended to be placed for loading at Los Angeles, and movement in either interstate or intrastate commerce from said point, might be and were ‘classified’; i. e., switched and segregated, according to the purposes for which they were intended or the districts or destinations from or to which they had moved or were about to move;

“(c) For the storage or placement of empty cars, not immediately required for the handling of freight, or which had recently been received from petition's repair facilities, or which were about to be taken to such repair facilities for purposes of necessary repair.

“3. On November 3, 1939, the date of the accident resulting in his death, and also the date of said death, the aforesaid decedent was employed by petitioner as a yardman or switchman, in said Los Angeles yard. On said November 3, 1939, and for at least 14 days immediately and continuously prior thereto, said decedent as such employe had been a member of a yard crew consisting of a yard foreman, 5 yardmen or ‘helpers', including decedent, and a ‘pin–puller’. Said crew was regularly assigned to duty at the aforesaid ‘bull ring’ yard. The particular crew of which decedent was a member worked a daily shift of 8 hours, commencing its tour of duty at 11:30 p. m. and endings the same at 7:30 a. m. Decedent, as a yardman and a member of said crew, participated in all of the switching and other work performed in said bull ring by his said crew. No other crew was regularly assigned to perform switching duties in said bull ring, during the daily 8–hour tour of duty to which decedent's said crew was assigned.

“As a yardman or ‘helper’, it was particularly the decedent's duty, which he duly performed each day, to assist and take part in the making up and breaking up of cuts or strings of freight cars as they were brought to or removed from the bull ring; also to assist and take part in the switching and placement of main–line freight trains, arriving at and terminating in said bull ring; also to ride single cars, or cuts or strings or cars, being shoved or switched into the various tracks of said bull ring, for the purpose of bringing them to a stop at proper places by the use of the hand brakes; also to throw switches as required; and generally to perform such other duties as might normally be required of a yardman in a freight yard at an important terminal such as petitioner's Los Angeles terminal.

“4. About 5:00 o'clock a. m. on November 3, 1939, and after decedent had been on duty for approximately five hours and thirty minutes, his body was found lying across one of the rails of one of the tracks of the bull ring. The attendant circumstances indicated that he had fallen from the platform of a freight car upon which he had been seen riding immediately prior to the time of the discovery of his body, and that he had been run over, and killed by the following freight car. No witness testified that he had actually seen the decedent fall; and apparently none of the members of his crew actually saw the accident. Some few minutes prior to the discovery of decedent's body, he had been instructed by his foreman to ride upon one of a string of three empty cars, and had actually been seen riding upon the rear platform of the first car of said string, which was then in the course of being placed upon one of the tracks of the bull ring, for temporary storage in contemplation of later use in actual intrastate transportation service. Said three cars were known as ‘beet racks', and were in fact flat cars temporarily equipped at petitioner's repair shop with wooden racks suitable for the loading of sugar beets; they had been brought from the repair shops earlier during decedent's tour of duty, to be placed in the bull ring for storage as aforesaid.

“At the time of the accident said cut of three cars was rolling ‘free’, i. e., not attached to the engine, and down a slight grade at a speed not exceeding 5 miles per hour; it being intended that they should be stopped by decedent, by the use of the hand brakes, at a predetermined point of rest. There was no collision between said cars and any other cars or other objects at the time of or immediately prior to the accident. A careful examination by qualified employes of petitioner revealed that said cars, and particularly the brakes and other safety appliances thereon, were in good repair and without defects. In fact, said cars had come from the repair shops within a few hours immediately preceding the accident. The testimony showed without dispute that petitioner and its employes other than decedent were entirely free from any negligence which might in any way have contributed to or caused the accident, and that the accident was not in any respect due to any negligence of petitioner or any of its employes, other than possibly the decedent himself.

“5. In the course of its tour of duty which commenced at 11:30 p. m. on November 2, 1939 (the same tour of duty during which the accident occurred), the crew of which decedent was a member, and decedent himself as a member thereof, had switched or handled various cars containing interstate freight, and moving in interstate commerce, between points in California and points in other states; and said crew, and decedent as a member thereof, had also participated in the switching and placement of a main–line freight train which had originated at and moved in interstate commerce from Yuma, Arizona, and had terminated its run at Los Angeles, which said freight train contained a number of cars, together with their contents, actually moving in interstate commerce.

“On each of the 14 days immediately preceding November 3, 1939, during which decedent had been employed as a member of the aforesaid switch crew, he had performed similar duties; namely, the handling and switching of interstate freight trains and of cars moving in interstate commerce, as well as numerous cars moving in intrastate commerce.

“6. The evidence showed that 51.3 per cent of all of the loaded and empty cars handled by petitioner into, through, to and from its Los Angeles terminal during the two–weeks' period from October 19 to November 3, 1939, immediately preceding the date of the aforesaid accident, were cars moving in interstate commerce.

“7. Decedent's employment in general, as related to said interstate commerce, both on the date of his death and during the period immediately prior thereto, included the regular and daily performance of duty as a yardman (as above described), in and about the handling of trains and cars containing interstate freight, or cars moving to and from and between points in different states, including both empty and loaded cars.

“8. A substantial and daily part of decedent's duties as such yardman, during the period of his aforesaid employment by petitioner, included the furtherance of the interstate commerce, carried on in and through said ‘bull ring’, and directly, closely and substantially affected such interstate commerce.”

Both parties concede that, under the facts, prior to the enactment of the amendments, 53 U.S.Stat. 1404, 45 U.S.C.A. §§ 51, 54, 56, 60, the case would not have been controlled by the basic statute. 35 U.S.Stat. 65, 45 U.S.C.A. § 51 et seq. The sole question presented by the record is whether the case is controlled by the said amendatory statute. We think it is. Construing the statute as we did in Civil No. 11595, we think it is clear that of the duties of the decedent it must be said they were the furtherance of interstate commerce and in a way directly, closely and substantially to affect such commerce as set forth in the amendment to section 1 of 53 U.S.Stat. 1404, 45 U.S.C.A. § 51.

It follows the award should be and it is annulled.

STURTEVANT, Justice.

We concur: NOURSE, P. J.; SPENCE, J.