#### Zavitovsky, Administrator, Appellant, vs. Chicago, Milwaukee & St. Paul Railway Company, Respondent.

*October 5*

November *16, 1915.*

*Railroads: Action for death of employee: What law governs: Inter state commerce: Burden of proof: Evidence: Sufficiency.*

1. Where the complaint in an action for death caused hy negligence predicated liability under the state statutes, but defendant affirmatively claimed that the case fell under the federal Employers’ Liability Act, defendant had the burden of proof on that proposition.

2. Coal which was piled on a dock and had passed out of interstate commerce was loaded upon cars and thence dumped into hoppers which projected into a sunken room or basement. From the hoppers it was taken by conveyors to a bin, was weighed out from such bin, and then went into another bin, from which it was spouted into the tenders of locomotives employed in interstate commerce. Railway employees were required every night to clean up, with shovels, the scattered coal from the floor of said sunken room and throw it into the conveyor, which carried it to the bins. While so doing one of them was fatally injured. The purpose of their work was primarily to clean the floor and the fact that the coal cleaned up finally reached the interstate locomotives was merely incidental. There were one or two men or crews of men between the deceased and the locomotives, as well as between the deceased and the coal pile on the dock. *Held,*that these facts did not show that the deceased when injured was engaged in interstate commerce.

S. Plaintiff’s evidence in this case as to the description of the place of work, its surroundings and lighting, and also as to the manner in which deceased came to his death, is criticised as defective.

Appeal from a judgment of tbe circuit court for Milwaukee county: LawbbNCe W. Halsey, Circuit Judge.

*Reversed.*

*William L. Tibbs*and *George A. Bowman,*for tbe appellant.

For tbe respondent there was a brief by *G. II. Van Alstine*and *II. J.*Killilea, and oral argument by *Mr. Killilea.*

*462Timlin, J.

In this case against a railroad employer for negligently, on January 2, 1913, causing the death of one of its employees not engaged in shop or office work, the learned circuit court directed a verdict for defendant. This was done apparently upon the ground that the evidence brought the case within the federal Employers’ Liability Act, and at the same time conclusively showed assumption of risk by the deceased under that act. On the date above mentioned actions against employers for such injuries might fall under the Compensation Act (sec. 2394 — 1 *et seq.*Stats. 1911) in the cases therein mentioned, wherein there had been consent to come under the terms of that act, or might fall under general statutory regulations of the relation of master and servant as in the case of an employer having less than four employees, or an employer who neglected or refused to consent as in the Compensation Act provided, or in the case of railroad employers the case might come under the federal Employers’ Liability Act, or under sec. 1816, Stats. 1911, or under the Compensation Act. It is only with the railroad class we have to do in the instant case. This inquiry is still further narrowed because the deceased employee was not engaged in shop or office work. The defendant was engaged in interstate commerce, and the first question which presents itself is whether the deceased employee was at the time of his injury also engaged in the same interstate commerce. The complaint manifestly predicated liability under the statutes of this state and the defendant in its answer affirmatively claimed that the case fell under the federal Employers’ Liability Act. It therefore had on this proposition the burden of proof which usually falls upon the affirmative. As a result of professional strategy or inadvertence, it makes no difference which, the case has been very imperfectly presented by the evidence of both sides. We first inquire whether defendant has lifted the burden of proof resting upon it to show that the deceased was at the time of his injury engaged in *463interstate commerce. We are informed by tbe evidence tbat be worked on tbe nigbt shift, but wbat bis duties were we do not know except tbat for about twenty minutes every nigbt after 12 o’clock be, with four or five others, was required to clean up, with shovels, tbe scattered coal from tbe floor of a sunken or basement room, and in doing so to throw such coal into tbe conveyor, which carried it up into one or more elevated bins. This coal bad been scattered on tbe floor in the process of taking it by conveyors from several hoppers which projected into said sunken room. Tbe coal came to tbe hoppers from cars which were “dumped” into tbe hoppers. It got into these cars by being loaded thereon from a pile belonging to defendant lying on or near a dock not far from tbe hoppers. How tbe coal got on these cars we are not informed except wbat is suggested by tbe single word “dumped” applied to tbe unloading of tbe ears. Whether tbe deceased was engaged in loading or unloading this coal, or whether there was one or two men or crews of men between tbe conveyor and tbe coal pile, we do not know. It is much tbe same with tbe evidence tracing tbe coal cleanings from tbe floor to tbe tenders of locomotive engines which by stipulation were engaged in interstate commerce. Tbe coal was not fed from tbe bin where tbe conveyor left it into these locomotive tenders. Tbe evidence indicates tbat it bad to be weighed out from this bin,, and also indicates tbat it then went into another bin from which it was spouted into tbe tenders, so there must have been one or two men or crews of men between the deceased and tbe supplied locomotive as well as between tbe deceased and the' coal pile on tbe dock. Tbe deceased may have taken part in tbe last delivery into tbe tenders of tbe interstate locomotives, but that is not shown. It is shown tbat tbe coal in tbe pile on or near tbe dock bad passed out of interstate commerce, and tbe one ground upon which it could be claimed tbat tbe deceased, at tbe time of bis injury, was engaged in interstate commerce is tbat be was engaged in tbe performance; of one *464step in the transmission of this coal from that pile to the interstate locomotive for use in the latter as fuel. In cleaning up the floor deceased was not engaged directly in interstate commerce. His purpose and that of his employer was to clean up the floor, and there was no place to put the coal cleaned up except on the going conveyors, and the fact that it, with other coal and by the aid of other agencies intervening between deceased and the delivery to the interstate locomotive, finally reached the latter, was merely incidental. If deceased was at the time engaged in interstate commerce by reason of the foregoing facts, then so were the men between him and the coal pile loading and unloading cars, and for a stronger reason so were the men between him and the interstate locomotive Weighing out the coal from the bin and delivering it directly into the tender. Only three illustrative cases need be noticed. *Pedersen v. D., L. & W. R. Co.*229 U. S. 146, 33 Sup. Ct. 648; *Ill. Gent. R. Co. v.*Behrens, 233 U. S. 473, 34 Sup. Ct. 646; *Ruck v. C., M. & St. P. R. Co.*153 Wis. 158, 140 N. W. 1074.

In the case first above cited the connection between the work in which the injured party was engaged at the time of his injury and interstate commerce was direct and immediate. The track, including the bridges, of a railroad used for interstate commerce trains, is always in use for that purpose, no matter what other purposes it may contemporaneously sub-serve. One engaged in the repairs of such track or bridge is engaged in a work which closely and immediately, without any intervening agency, furnishes an indispensable and direct aid in interstate commerce. In the second case above cited the injured man was a member of a switching crew at work in the yards. Within broad lines, as every court knows, the duties of such crew include assembling cars for the purpose of making up outgoing trains or parts of trains, and distributing some or all of the cars of the incoming trains. The interstate cars could not be assembled or distributed unless *465local or intrastate cars of the same train which stand in the way were moved or disposed of. Interstate commerce could not be carried on where interstate and intrastate cars are mixed in the same train, as they nearly always are in freight trains, without moving the intrastate cars. Such movement is an operation essential to the carrying on of interstate commerce as long as switching is done as it is at present. The primary purpose of moving the intrastate cars is to deliver them to their destination, and the aid to interstate commerce secondary and incidental. Accordingly it was held that such member of a switching crew, injured while moving in the yard a car loaded with intrastate freight, was not within the act of Congress, although unquestionably the work he was doing was in aid of and essential to the carrying on of interstate commerce by transportation. In the instant case it appears from the evidence that the primary purpose of employer and employee was to clean up the floor, and the benefit to or aid to interstate commerce resulting therefrom was secondary and incidental. Had it been shown that deceased aided in delivering the coal upon the tender of the interstate locomotive and, as a step in assisting himself and his associates to perform that operation, cleaned up the floor of this room for twenty minutes every night, a different case might have been presented. Another phase of remoteness is considered in the case third above cited. But weighing these precedents as best we can> we are of the opinion that in the instant case the defendant has not lifted the burden of proof which rested upon it in this respect. It may be able to do so upon another trial.

We express no opinion upon the question of assumption of risk if the case should be finally found to come under the act of Congress, because the evidence may be quite different upon another trial and that question does not arise until after the case has been brought within the act of Congress. Neither do we express any opinion upon the merits of the case. The *466plaintiff’s evidence is very defective both with reference to; the description of the place of. work, the machinery, the platform, and the lighting apparatus, and also with reference to the manner in which the deceased came to his death. In this sunken or basement room, fifty feet long north and south by thirteen feet nine inches wide east and west, it appears that, there are two conveyors consisting of receptacles called buck--ets mounted on a double sprocket chain, one running from; north to south and from seven and one-half to fifteen inches: west of the east wall, and one running in the opposite’ direction and about the same distance east of the west wall and three feet two inches apart. Each runs very slowly and at an elevation of about one foot from the floor of the room and horizontal to the floor until it passes round a sprocket wheel and changes its horizontal motion to a vertical motion in its journey to the elevated bins. In this sunken room there is a platform three and one-half feet above the floor in the south end of the room and eight by ten feet in surface area, but whether the east conveyor passed under any part or beam of this platform is very obscure, and we have no evidence concerning the number or location of the hoppers. There is evidence that this platform extends from the west wall to the west line of the east conveyor, and there is contradictory evidence with reference to whether the surface extension of ten feet is from east to west or from north to south. If the jury are to pronounce that this place is not as safe as the nature of the work would permit, they must be informed of its description with substantial accuracy by the plaintiff. The case is also very hazy on the question whether the death was caused by negligence of the employer or was the result of an unaccountable accident. With reference to the statutory rules of liability within which the facts must bring the case, the attention of counsel is invited to Minneapolis, *St. P. & S. S. M. R. Co. v. Industrial Comm.*153 Wis. 552, 141 N. W. 1119, where the injury occurred June 24, 1912, and the in- . *467jured party was not a shop or office employee; also to the case of *Salus v. G. N. R. Co.*157 Wis. 546, 147 N. W. 1070, where the injury occurred March 29, 1913; also to *Cox v. C. M. & St. P. R. Co.*159 Wis. 491, 149 N. W. 709, 151 N. W. 267, where the injury occurred September 26, 1911. It is hoped that if the case ever makes another appearance in this court it will be more thoroughly presented on the facts and the dark places in the law above suggested illuminated by .such learned briefs that *post argummtum*communications to this court will be unnecessary.

*By the Court.*— Judgment reversed, and the cause remanded for a new trial.