Atchison, Topeka & Santa Fe Railway v. Industrial Accident Commission

RICHARDS, J.,

pro tem.

This is an application for a writ of review, wherein the applicant seeks to have this court review the proceedings had and to annul the order issued by the Industrial Accident Commission in the matter of the several applications of Esther Burton as the widow, and certain others as the heirs of Ray E. Burton, an employee of the Atchison, Topeka and Santa Fe Railway Company, the applicant herein, for an award on account of the death of said employee while acting as a guard of the properties of said railway corporation in its railroad yards at San Bernardino, California, on July 27, 1922. The applications for such award were filed before the Commission on August 30, 1922, and on September 25, 1922, the railway corporation answered said applications, admitting that it was the employer of said Burton at the time and place of his death, but specially pleading that at the time and place when and where said Ray E. Burton received the injuries which caused his death he was employed by said corporation in guarding and protecting the railway tracks, buildings, cars, and other equipment of said corporation as a common carrier engaged in interstate commerce, such goods being then and there contained in cars moving in interstate commerce, and in protecting the lives of the other employees of said corporation then and there engaged in interstate commerce, and in making safe and possible the carrying on of interstate commerce by said corporation in the city of San Bernardino, California, and that said corporation, at the time and place when and where said Burton was injured, was engaged in interstate commerce as a common carrier by rail and was employing said Burton in connection therewith in the protection of and the carrying on of said interstate commerce. The matter came on for hearing before the Commission on November 10, 1922, at which hearing it was stipulated that the injuries to said Ray E. Burton arose out of and in the course of his employment and were proximately

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caused thereby, and occurred while the said employee was performing services growing out of and incidental to the same. Evidence was also presented showing the circumstances surrounding the injuries to and death of said employee, and also as to the character of the commerce as to being interstate or intrastate or both, in which the said railway corporation was engaged at the time and place of Burton’s said injuries, which evidence will be hereafter more particularly adverted to. The matter having been submitted to the Commission upon such stipulation and evidence, the Commission on April 11, 1923, made its findings to the effect that Ray E. Burton, the husband and father, respectively, of the said applicants, on July 27, 1922, at San Bernardino, California, while in the employ of the defendant corporation as a watchman and car inspector, sustained injuries arising out of and in the course of his employment when he was shot by unknown persons, which injuries proximately caused his death; that his said employer was at said time a corporation engaged in interstate commerce by rail, and the deceased employee was engaged as a guard in the yards of said employer at San Bernardino, California, in which was handled indiscriminately both interstate and intrastate commerce, and the duties of said employee were to protect the entire yard, including trackage, buildings, and equipment against violence by striking employees or their sympathizers, and was at the time of his injury and death engaged in such service, and therefore at said time both employer and employee were subject to the provisions of the Federal Employers’ Liability Act and not to the jurisdiction of this Commission. It was accordingly ordered that the proceedings should be dismissed.