The parties agree that the writ of review in this case presents to this court for determination a single question. That question is: Was Benjamin Harrington, at the time he received the injury resulting in his death, engaged in an activity forming a part of a service in interstate commerce?
The Industrial Commission of the State of Utah concluded that deceased, at the time of the injury resulting in his death, was engaged in interstate commerce, and upon that finding, concluded and decided that the Industrial Commission of Utah was without jurisdiction to proceed with the cause or award compensation under the Workmen's Compensation Law of Utah, Rev. St. 1933,42-1-1 et seq., no *Page 34 matter how meritorious the claim. Without attempting to separate facts from conclusions, the Commission stated in its findings:
"I. That on February 9, 1937 and for several years prior thereto the defendant Railroad Company owned and operated a railroad extending from Salt Lake City, Utah, to Payson, Utah, and was engaged in interstate commerce and employed more than three employees and had complied with the laws of Utah pertaining to Workmen's Compensation, and the Great American Indemnity Company was the insurance carrier of said B.L. Ball as Receiver.
"II. That on February 9, 1937, and since November 1, 1936, Benjamin H. Harrington was in the employ of the defendant, B.L. Ball as Receiver of the Salt Lake and Utah Railroad Company, and was employed as a brakeman earning an average weekly wage of $19.81, working seven days per week; that on February 9, 1937 said Benjamin H. Harrington suffered an accidental injury while in the course of his employment in interstate commerce by said defendant, which resulted in his death on March 7, 1937.
"III. That at the time of said accidental injury the deceased was engaged and working as a brakeman on a train of seventeen cars operated by defendant southbound between Salt Lake City and Provo, Utah; that said train contained and included a carload of interstate freight, to-wit, a car of scrap paper billed and being transported in interstate commerce from Salt Lake City, Utah, to Kalamazoo, Michigan, and a car of poultry feed originating at Salt Lake City and billed and being transported to American Fork, where the defendant Railroad Company was to deliver the car to the Utah Poultry Company at its place of business.
"The Utah Poultry Company and the Chipman Mercantile use the same industrial track and siding and in order to deliver the car of feed to that siding it was necessary to unlock and open gates across the railroad company's tracks to permit cars to enter the private premises of the companies above named. When said train reached the town of American Fork the crew thereof, consisting of Harrington and his fellow employees, detached the engine and the car of poultry feed from the train and moved down the main line about one-half mile, stopping at the switch leading to the siding of the Utah Poultry Company for the purpose of delivering said car of poultry feed; that the balance of the train was left one-half mile west of said point at said time in order to not leave said train within the business district of American Fork and in order to not obstruct the main street of said town with said train while the crew was switching and delivering said car of poultry feed to the Utah Poultry Company. *Page 35
"That while delivering and spotting said car of poultry feed out of said interstate train it became necessary for said deceased to cross the public highway in American Fork in order to open said gates leading into the industrial siding into the Utah Poultry Company in order to enable deceased and other members of the crew to switch, deliver and spot said car of feed out of said interstate train; and while so crossing said highway to open said gate said deceased was struck by a motor truck being operated by Wayne Godfrey of Murray, Utah; * * *" (Harrington died shortly after from the effects of the injury.)
From the foregoing the Commission concluded "that at the time of said accident and injury said deceased and said B.L. Ball, as receiver of the Salt Lake and Utah Railroad Company were engaged in interstate commerce and said accident and injuries arose out of and during the course of interstate commerce."
The following statement of facts is agreed to by both parties. The diagram, not a scale drawing, will assist in following movements of the cars, engine, and parties:
Mr. Harrington was a brakeman of the crew which went on duty at Provo at 10:45 P.M., February 8, 1937. The crew proceeded to Springville, picked up some cars and continued on with their train toward Salt Lake City. The crew usually tied up at Provo. It was the practice for the northbound crew to meet the train southbound from Salt Lake City at Cutler. Cutler is a station about two miles north (railroad directions) from American Fork. The two trains met at Cutler about 5:30 A.M., on February 9, 1937. The crew of the southbound train took the northbound train and the crew of which Mr. Harrington was a member took charge of the southbound train. The southbound train contained 17 cars; 16 of these were received from the Union Pacific Railroad Company, at South Salt Lake and one car loaded with scrap paper was picked up at the Salt Lake industry track of the Salt Lake and Utah Railroad Company, one of the defendants herein. This car contained a shipment to the Pioneer Paper Stock Co., at Kalamazoo, Michigan, moving from *Page 36
[EDITORS' NOTE: DIAGRAM IS ELECTRONICALLY NON-TRANSFERRABLE.]
Salt Lake City to be delivered enroute to the Denver and Rio Grande Railroad at Grundy, a station near Provo, Utah. The train also contained a car of feed, moving from Salt Lake City to the Utah Poultry Company at American Fork, Utah. It is conceded that the entire train, with the exception of the car moving from Salt Lake City to Kalamazoo, Michigan, was wholly intrastate in character; but it is claimed in accordance with what is said to be the general *Page 37 rule that the presence of the interstate car impressed the whole train as interstate.
After the exchange of trains by the crews, the crew, of which Mr. Harrington was a part, moved the southbound train to a point about half a mile from the American Fork Station, stopped it there out of the highway traffic, detached the car of feed and moved it up to near the American Fork Station and stopped it there. The engine was detached, moved into the house or station track, "light," coupled onto the car of coal, at a place marked first position of the car of coal, and moved it out over the curve to the main line. The engine then moved the car of coal east (south, railroad directions) where it was uncoupled and held by the brakes while the light engine moved down and north (west) past the switch so as to be able to take the house track lead. The switch was then lined up with the curve to the house track lead and the engine moved thence into the curve to permit the car of coal to roll by gravity down to the feed car. Harrington lined up the switch so as to permit the car of coal to roll down, and, pursuant to orders, walked east along the street and was crossing over to open the gate to permit the "light" engine to move into the Chipman yard. While Harrington was doing this the light engine was moving around the curve, the trolly man intending to manipulate the switch near the station to permit the light engine to move across the street into the Chipman yard. Just before the engine had reached the position beyond the switch, the trollyman shouted to the motorman to stop as Harrington had been injured. Harrington was beginning to cross the street approaching the gate when a truck traveling on the highway struck him, inflicting injuries from which he died. The last acts Mr. Harrington did, related in any way to the movement of any of the cars, was to line up the switch to permit the engine to return to the house track lead, or to re-align the switch to permit the coal car to roll down to the car of feed. The car of feed, the car of coal, and the cars on the industry track were all intrastate cars. *Page 38
It is not contended that the car of coal had not lost its interstate character, although when delivered to the American Fork house track, it came out of a train impressed with interstate commerce; nor is it contended that the cars the light engine was proceeding to move were impressed with interstate commerce. From the time the feed car had been taken out of the train and the train had been left on the main line, all operations of the crew had been directed to the 1 movement of cars intrastate in character. If it were contended that the car of coal was still impressed with an interstate commerce character, we think the position would be untenable. Both the car of coal and the cars in the Chipman yard had no interstate character. Their interstate character had terminated before the contemplated movements from their positions on the sidings were initiated. Lehigh Valley Railroad Co. v.Barlow, 244 U.S. 183, 37 S. Ct. 515, 61 L. Ed. 1070. These movements were in pursuance of an order from the station agent to take the car of coal and move it into the industry track of the Chipman Mercantile Company. The car of coal had been on the house track for a number of days.
Counsel for defendants contend that the task in which Harrington was engaged was ultimately to permit the spotting of the car of feed out of the interstate train as well as to permit the spotting of the car of coal, and maintain that the task of opening the gates was not separable from the major task of operating the train in interstate commerce. The confusion in the cases arises out of determining just how far a major task arising out of an operation impressed with interstate commerce may be followed into details, or be broken down into elements that may be followed ultimately into intrastate commerce. The distinction has not been made upon the basis of whether the crew was a road crew or a switching crew; but upon the work the crew or person was engaged in at the time of the injury. That the tracing of a series of operations and events may lead ultimately *Page 39 to a particular circumstance or purpose, such as the spotting of the feed car, which was an intrastate shipment and was tagged, while in the train, with interstate commerce because there was one car in the train containing an interstate shipment, is not necessarily determinative of the task the crew was engaged in or the task of Mr. Harrington at the time of the injury which resulted in his death.
Harmonizing or distinguishing the cases cited by both parties is futile and would only add to what has many times been said: differentiation or harmonization is a matter of analysis and opinion, each case being determined upon its own facts, or its similarity or want of it to other cases. The courts have come to the general statement that "each case must 2 be decided in the light of the particular facts with a view of determining whether at the time of the injury the employee is engaged in interstate business, or in an act which is so directly and immediately connected with such business as substantially to form a part or necessary incident thereof." (Italics added.) New York Central Hudson River Railroad Co. v. Carr, 238 U.S. 260, 35 S. Ct. 780, 59 L. Ed. 1298. This case and many others are discussed in the case of Roach v. LosAngeles S.L.R. Co., 69 Utah 530, 256 P. 1061, and the same case on a second appeal in 74 Utah 545, 280 P. 1053. In commenting upon the Carr Case, supra, this court, in 69 Utah 530, 256 P. page 1065, stated:
"Of necessity, each case, to a large extent, must depend upon its own facts. It would be difficult if not quite impossible to declare a precise and a universal rule applicable to and controlling in all cases."
There is no dispute or conflict in the evidence. It was all submitted by the defendants. Whether or not Mr. Harrington was engaged in interstate commerce at the time of the injury, although in the cases said to be a question of fact for the court or jury, it is, nevertheless, jurisdictionally, largely a conclusion from facts. *Page 40
Let us restate the facts as they appear, with emphasis on details, rather than as they relate to the operation of a railroad engaged in both intrastate and interstate 3 commerce, or a train so impressed because of a single car therein moving in interstate commerce.
The train left at Cutler, or on the main line some distance north of American Fork, was tagged as an interstate train because of the presence of a single car containing goods for interstate shipment. It is argued that this car of feed, an intrastate shipment, though detached from the train and moved into American Fork, still retained its interstate character. No contention is made that the car of coal had not lost its interstate character by having been spotted on the house track in the station yard for some days. The car of coal and the two cars in the Chipman Mercantile Co. and Utah Poultry Co. yard were directed to be removed by orders of the dispatcher at American Fork. Nothing appears from the record as to the details of the dispatcher's orders.
When the "light" engine left the coal car, it moved west to a place beyond the switch to the house lead. Then, after Harrington had lined up the switch so the engine could take the lead and it had passed on to the lead sufficiently to clear the main line so the car of coal might be permitted to roll down to the car of feed, Harrington realigned the switch with the main line. He did not ride the engine on its proposed journey to the Chipman Mercantile Co. and Utah Poultry Company yard. His last act, touching railroad property, or appliances, was the realigning of the switch with the main line. He then started his journey on foot for the purpose of opening the gate to permit the removal of two cars from the Chipman-Utah Poultry Co. yard. Those two cars were in no way impressed with or connected with interstate commerce business directly or indirectly; nor did the errand of opening the gate nor the movement of the "light" engine, from which, temporarily, Harrington was disconnected, in any way substantially form a part or necessary incident of interstate commerce. What was to be ultimately done with *Page 41 those cars does not appear. At best it can rest only in intention. If the ultimate spotting of the car of coal or the car of feed, or both, was done in order that they might occupy the place of, or a place beyond the position occupied by the two cars on the industry track, it does not so appear. The errand or purpose of the operations in which the engine crew (including Harrington) was engaged was to move cars which were in no way connected with interstate business. Harrington's orders were to open the gate at the north side of the street to permit the engine to enter the Chipman-Utah Poultry Co. yard. Those cars, in so far as revealed by the record, were neither to be moved into nor out of a train directly and immediately connected with interstate commerce at the time the injury inflicted by a third party occurred to Harrington.
Since this cause was submitted, our attention has been called to a recent case decided by the Circuit Court of Appeals for the Eighth Circuit, reported in 94 F.2d 117. The case, Wabash Ry.Co. v. Bridal, arose in Iowa. A brakeman was employed on what was known as a "turn-around" freight train between stations in Iowa. The crew did whatever switching was necessary at the intermediate stations. The trains carried local as well as interstate shipments. On the evening before the accident, a car containing a local shipment consigned to an intermediate station was taken out of the interstate train and "spotted" on what is known as the house track. At that time there was no agent at the station and the crew had no instructions as to where to place the car. The next morning, on the return trip, the train also had interstate shipments. When the train arrived at the station where the car had been temporarily spotted the night before, the train crew, there being no switching crew, was directed to spot the car at an unloading track. After the engine had moved the car to an approximate location and returned to the train, it was learned the car had not been properly placed. The conductor directed the movement of the car by means of pinchbars. The brakeman, for the purpose of *Page 42 stopping the car on signal at the right place, took his position at the brake. When he undertook to set the brake and stop the car, by reason of a defective brake step he was thrown to the ground and injured. It was there held that the brakeman was doing work "so closely related to interstate transportation as directly to affect it." [Page 123.] Further, it was stated that "if he were injured and detained, it would delay the interstate movement of the train."
This case illustrates the application of a rule providing that a car temporarily spotted the night before had not lost its interstate character. What relation, if any, existed between the injury to the brakeman and a possible delay of an interstate train does not appear. In the case of Sullivan v. Wabash Ry.Co., 6 Cir., 23 F.2d 323, it is indicated that a yard switchman, injured while dropping an intrastate car on his way to get interstate cars, was engaged in interstate commerce under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, since dropping an intrastate car was merely an incident to a dominant interstate task. On the other hand, in the case of Pope v.Utah-Idaho Central R.R., 10 Cir., 54 F.2d 575, a switchman who intended to pick up and transfer interstate after placing intrastate cars was not engaged in interstate commerce. For further cases see Peters v. Industrial Comm. of Utah, 74 Utah 140,277 P. 408.
This case does not come within the doctrine of the Carr Case, supra, nor within any of the cases that would require a holding as a matter of law that Harrington at the time of the injury was engaged in interstate commerce. The Industrial Commission, as indicated in its findings, refused to take jurisdiction of the matter. We think the Commission should have taken jurisdiction.Murch Bros. Const. Co. et al. v. Industrial Comm. et al.,84 Utah 494, 36 P.2d 1053, citing on pages 501 and 502, 36 P.2d pages 1056, 1057, the case of Luker Sand Gravel Co. v.Industrial Commission, 82 Utah 188, 23 P.2d 225; Angel v.Industrial Comm., 64 Utah 105, 228 P. 509; Industrial Comm. v. Evans, 52 Utah 394, 174 P. 825; Miller Lux v.Industrial Accident Comm., *Page 43 179 Cal. 764, 178 P. 960, 7 A.L.R. 1291, and Denver R.G.R.R. Co. v. Industrial Comm., 60 Utah 95, 206 P. 1103.
The order of the Industrial Commission refusing to take jurisdiction is annulled and the cause remanded for further proceedings in accordance with the views expressed herein.
HANSON and LARSON, JJ., concur.