Defendants are corporations, and have for several years operated a logging railroad in Snohomish county, for the purpose of hauling logs from their camp, about eight miles northeast of the city of Arlington, to tidewater, near Marysville. The late John F. Kidder was, for approximately fifteen years, in defendants' employ as brakeman, working upon this logging railroad. March 24, 1927, Mr. Kidder, while riding on a logging train in the course of his employment, was killed in an accident resulting from the falling down of a brake beam on one of the logging *Page 473 trucks, which, catching in the frog of a switch, threw several of the trucks from the track, Mr. Kidder having been caught beneath one of them. This action was instituted by Matilda Kidder, his widow, as administratrix of his estate, for the purpose of recovering damages occasioned by her husband's death. From a judgment in favor of plaintiff, defendants appeal.
[1] Several questions are presented by appellants' assignments of error, but we find it necessary to discuss only one of them. Respondent, in her amended complaint upon which the action was tried, alleged that appellants were operating the railway above mentioned, and were common carriers "engaged in the transaction of interstate commerce." Appellants admitted their corporate identity, that they were operating the logging railroad, and that Mr. Kidder had been in their employ, but denied that they were common carriers or engaged in any business which constituted interstate commerce. In addition to their denials, appellants pleaded several affirmative defenses, only one of which need be mentioned.
Appellants pleaded affirmatively that they were operating a logging railroad within Snohomish county; that the railroad had been classified by the department of labor and industries of the state of Washington as being an intrastate railway solely, not engaged in any particular in interstate commerce; and that appellants had been required by the department of labor and industries of the state of Washington to pay premiums upon their payroll, which premiums appellants had paid.
The affirmative allegations contained in appellants' answer above referred to were denied by respondent upon information and belief. It is not disputed by respondent that appellants did, in fact, pay, upon demand by the department of labor and industries of *Page 474 the state of Washington, premiums upon their payroll. Respondent contends that appellants were engaged in interstate commerce, and that, therefore, she may maintain this action, and is not required to accept the compensation provided by the statute of this state known as the Workmen's Compensation Act. Appellants deny that they were engaged in interstate commerce, and contend that respondent cannot maintain this action, but, under the facts and the law, is relegated to her claim for compensation under the state statute.
We are satisfied that, in so far as appellants used their railroad for transporting their own logs to tidewater, they were not engaged in interstate commerce, but were doing purely an intrastate business. McCluskey v. Marysville Northern R. Co.,243 U.S. 36; State ex rel. Chicago, Milwaukee, St. Paul Pac.R. Co. v. Dept. of Public Works, 149 Wash. 129, 270 P. 300. It appears, however, from the record, that appellants, from time to time, in connection with the operation of their railway as used in the prosecution of their own business, hauled, for two mill companies whose plants adjoined their railroad right of way, cars loaded with lumber and other mill products, most of which cars were intended for interstate shipment. Appellants hauled these cars at a flat rate of sixteen dollars per car to a derail or switch which was connected with their own track, upon which they deposited the cars, which were subsequently picked up by a railroad doing admittedly an interstate business. No bills of lading were issued by appellants for these cars, which were hauled over appellants' railway on oral order, without any regard to their ultimate destination, whether intrastate or interstate.
At appropriate stages in the proceedings, appellants moved the court for judgment in their favor, upon the *Page 475 ground that the evidence failed to show that respondent was entitled to maintain this action under the Federal law. These motions were denied by the trial court, which submitted to the jury the question of whether or not appellants were, in fact, engaged in interstate commerce. If the testimony, in fact and in law, showed any conflict upon this question, and if the question were a proper one to be considered by the jury, then it may be assumed that this question was properly submitted. As we view the case, however, the issue was, in fact, narrower, the question to be determined being whether or not, at the time of the accident, Mr. Kidder was himself engaged in interstate commerce. If he was, then respondent can maintain this action; if he was not, then appellants' motion for judgment in their favor, as matter of law, should have been granted.
Under the authorities, it was not enough for respondent to show that appellants did, from time to time, haul some cars which might be classified as being used in interstate traffic. The burden rested upon respondent to show that, at the time of the accident, her intestate was engaged in interstate commerce. It was not sufficient for respondent to show that appellants, in carrying on their transportation business, engaged occasionally in interstate commerce, and under the record, as we view it, whether or not they were from time to time so engaged, is immaterial. Respondent failed to show that, at the time of the accident, there was any car attached to the train or forming a part thereof, other than logging trucks owned by appellants and used by them in connection with their logging operations. Indeed, it clearly appears from the record that the train was solely made up of appellants' engine, caboose and logging trucks. The train was proceeding from tidewater, after unloading logs, *Page 476 back towards the logging camp, and contained no car, loaded or empty, belonging to any person other than appellants, or which was intended at that time to be used by any other person.
The supreme court of the United States, in the case ofIllinois Central R. Co. v. Behrens, 233 U.S. 473,58 L. Ed. 1051, held that a fireman, who came to his death while at his post of duty on his engine, which was engaged in switching cars from one point to another within the city of New Orleans, was not, at the time of his death, engaged in interstate commerce, and that his personal representative had no right of action against the railroad company for alleged negligence, which resulted in the collision occasioning the death. The railroad for whom the fireman had been working was engaged in both intrastate and interstate commerce, but it appeared that, at the time of the accident, the fireman was engaged in moving several cars, all loaded with intrastate freight, from one part of the city to another. The court quoted from its own decision in the case ofPederson v. Delaware, L. W.R. Co., 229 U.S. 146, the following:
"`There can be no doubt that a right of recovery thereunder [referring to the act of Congress of April 22, 1908, making railroads while engaged in interstate commerce liable in damages to any person suffering injury while employed by the carrier in such commerce] arises only where the injury is suffered while the carrier is engaged in interstate commerce and while the employee is employed by the carrier in such commerce.' . . . `The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?'"
It was held that the mere fact that it was anticipated that the fireman would, upon the completion of the task upon which he was engaged at the time of his injury, enter upon other work, to-wit, switching cars *Page 477 which were, at the time, being used in interstate commerce, was immaterial, and that as, at the time of the accident, the deceased was engaged in intrastate commerce only, no liability existed against the employer under the Federal law.
In the case of Shanks v. Delaware, L. W.R. Co.,239 U.S. 556, it was held that an employee of a railroad company which was engaged in both intrastate and interstate transportation, who was working in a machine shop maintained for repairing locomotives, was not engaged in interstate commerce while taking down and putting up fixtures in such machine shop, and could not maintain an action against the railroad company for injuries suffered while so engaged.
It was held in the case of Chicago, B. Q.R. Co. v.Harrington, 241 U.S. 177, that an employee of a railroad, engaged in switching coal belonging to the carrier from a storage track to the coal shed, where it was to be placed in bunkers and supplied as needed to the carrier's locomotives which were engaged indiscriminately in intrastate and interstate traffic, was not engaged in interstate commerce. The court applied the rule as laid down in the case of Shanks v. Delaware L. W.R.Co., supra, and cases there cited, to the effect that:
". . . the true test of employment in such commerce [interstate] in the sense intended 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?"
The court held that there was no such close or direct relation to interstate transportation, in the taking of the coal to the bunkers, as would render the plaintiff engaged in interstate commerce, and that he, therefore, could maintain no action against the *Page 478 carrier, as the Federal Employers' Liability Act did not apply.
In its opinion in the case of Erie R. Co. v. Welsh,242 U.S. 303, the supreme court reaffirmed the doctrine that, under the Employers' Liability Act "the true test is the nature of the work being done at the time of the injury," the mere expectation that plaintiff might presently be called upon to perform a task in interstate commerce, being insufficient to bring the case within the act, citing Illinois Central R. Co. v. Behrens, supra.
The rule laid down by the supreme court of the United States in the foregoing cases has been followed and applied by inferior United States courts in the following instances: Boyle v.Pennsylvania R. Co., 221 Fed. 453, affirmed by the Circuit Court of Appeals, Boyle v. Pennsylvania R. Co., 228 Fed. 266; Pryorv. Bishop, 234 Fed. 9; Missouri Pac. R. Co. v. Mette, 261 Fed. 755; St. Louis-San Francisco R. Co. v. Mills, 3 F.2d 882;Onley v. Lehigh Valley R. Co., 36 F.2d 705.
The application of the Federal Employers' Liability Act to a situation somewhat similar to that here presented, was first considered by this court in the case of Horton v.Oregon-Washington R. N. Co., 72 Wash. 503, 130 P. 897, 47 L.R.A. (N.S.) 8, in which it was held that an operator of a pumping plant, installed for the purpose of supplying water to locomotives used both in interstate and intrastate commerce, was within the purview of the Federal statute.
In the later case of Morrison v. Chicago, Milwaukee, St.Paul R. Co., 103 Wash. 650, 175 P. 325, it was held that a foreman in charge of a construction gang was not employed in interstate commerce while he was engaged in unloading concrete tiling, to be stored for future use in replacing wooden culverts. The *Page 479 previous case of Horton v. Oregon-Washington R. N. Co.,supra, was discussed, as were many other federal and state cases. There could be, of course, no question but what the defendant railroad was engaged in interstate commerce. That being an admitted fact, the question to be determined was whether or not the plaintiff's intestate was, at the time he was killed, engaged in interstate commerce. After a thorough review of the authorities, this court held that he was not so engaged, and reversed a judgment entered by the superior court upon the verdict of a jury in plaintiff's favor. The supreme court of the United States denied a petition for a writ of certiorari (249 U.S. 611).
The question was, also, considered in the later case of Adamsv. Hines, 114 Wash. 672, 196 P. 19, and a judgment in favor of the employee was reversed, on the ground that he was not, at the time he was injured, engaged in interstate commerce.
In the case of Prink v. Longview, Portland Northern R.Co., 153 Wash. 300, 279 P. 1115, it was held that an employee of a railroad, engaged in building a dike, was working on "maintenance" and not "railroad construction work," and, therefore, came within the provisions of the Federal statute. The facts in the case last cited were so different from those in the case at bar that the opinion is not here in point.
The authorities upon this question are collected and discussed in L.R.A. 1915C 56; 10 A.L.R. 1184, and 65 A.L.R. 613.
In support of her contention that the Federal Employers' Liability Act applies to the situation here presented, respondent cites several authorities which we shall now discuss.
The supreme court of the United States, in the case ofRailroad Commission of Ohio v. Worthington, 225 U.S. 101, held that a rate fixed by the Ohio Railroad *Page 480 Commission for transportation of coal from different places in Ohio to "on board" ships at the port of Huron, Ohio, intended for shipment to some place without the state, the coal being billed from the place of loading to the shipper's own order at Huron, was a rate affecting interstate commerce, and consequently void.
The same court, in the case of Texas New Orleans R. Co. v.Sabine Tram Co., 227 U.S. 111, held that merchandise intended for shipment beyond the state line acquired the character of foreign commerce as soon as the same actually started for its destination, and that, while the transportation should be continuous, it need not necessarily be by the initial carrier.
In the case of Hughes Bros. Timber Co. v. Minnesota,272 U.S. 469, the supreme court, speaking through Mr. Chief Justice Taft, held that a shipment of logs, initiating in Minnesota and proceeding to a terminus within the state of Michigan, constituted interstate commerce from the time the logs started on their journey.
The foregoing authorities would be pertinent if, at the time Mr. Kidder was killed, there had been, as part of the train upon which he was performing his duties as brakeman, a car containing merchandise destined for interstate commerce. The only question presented here is whether or not, at the time of the accident, Mr. Kidder came within the provisions of the Federal Employers' Liability Act.
Counsel for respondent cites other authorities from different inferior Federal courts, but none of them touch upon the question here presented. Of these authorities, the case of United Statesv. Colorado N.W.R. Co., 157 Fed. 321, is typical. In that case, the circuit court of appeals for the Eighth Circuit, speaking through Judge Sanborn, held, generally *Page 481 speaking, that every part of every transportation of articles of commerce, in a continuous passage from a commencement in one state to a definite destination in another, constitutes interstate commerce, and that every carrier, transporting merchandise over any portion of its route is engaged in interstate commerce.
The question at issue here is, of course, to be determined under the Federal statute. Flanders v. Georgia S. F.R. Co.,68 Fla. 479, 67 So. 68. In our opinion, the authorities relied upon by respondent are not pertinent to the question here presented, which is controlled by the principle laid down in the case of Illinois Central R. Co. v. Behrens, supra, and cases in which the rule therein laid down was followed. Applying this doctrine to the evidence contained in the record before us, we hold that there was no evidence upon which the jury could base a finding to the effect that respondent's intestate was, at the time of his death, engaged in interstate commerce, or which would justify the court in concluding that such was the case (it being, for the purposes of this opinion, immaterial whether that question should have been submitted to the jury or determined by the court from the evidence, as matter of law. Graber v. Duluth,S.S. A.R. Co., 159 Wis. 414, 150 N.W. 489; Oberlin v.Oregon-Washington R. N. Co., 71 Ore. 177, 142 P. 554;Pelton v. Illinois Central R. Co., 171 Iowa 91, 150 N.W. 236), and that, consequently, appellants' motion for judgment in their favor should have been granted.
The judgment appealed from is reversed, with directions to the trial court to enter judgment in appellants' favor, dismissing the action.
FULLERTON, MAIN, MITCHELL, and HOLCOMB, JJ., concur. *Page 482