The Workmen's Compensation Reports of All Decisions Rendered in Compensation William Otis Badger, Jr., Editor Volume IV New York Published by C. C. Hine's Sons Co. 100 William Street 1919 The Workmen's Compensation Law Journal Volume IV July, 1919 No. 1 Reports of All Decisions Rendered in Compensation and Federal Employers' Liability Cases in the Federal Courts and in the State Appellate Courts. SUPREME COURT OF ARIZONA. ARIZONA EASTERN R. CO. V. MATTHEWS. (No. 1660.)* 1. MASTER AND SERVANT—WORKMEN'S COMPENSATION LAW "MANUAL LABOR"-"MECHANICAL LABOR." A local bill clerk for a railroad is not engaged in "manual or mechanical labor" within Employers' Liability Act, par. 3156, although occasionally at other times than when injured he did manual labor in loading and unloading live stock and freight; "mechanical labor" being skilled labor employed in making and repairing tools and instruments, and “manual labor," under such paragraph, meaning actual physical contact with the dangerous instruments.. (For other cases, see Master and Servant, Dec. Dig. § 361.) (For other definitions, see Words and Phrases, First and Second Series, Manual Labor; Words and Phrases, Mechanical Labor.) 3. MASTER AND SERVANT - WORKMEN'S COMPENSATION LAW. The phrase "caused by an accident due to a condition or conditions of such occupation," appearing in Const. art. 18, §7, and in Employers' Liability Act, par. 3154, requires more than that accident arise out of and in the course of the employment, and an injury must have occurred while employee was at work in his occupation and it must have been occasioned by a risk or danger inherent in the occupation. (For other cases, see Master and Servant, Dec. Dig. § 371.) 4. MASTER AND SERVANT - WORKMEN'S COMPENSATION LAW. Where a bill clerk at a railroad freighthouse was injured by falling into a scale pit being constructed by the railroad "along the route usually traveled by himself and others having business in and about defendant's freight depot" while such bill clerk was returning from midnight lunch, the injury was not one "caused by an accident due to a condition or conditions" of his occupation, although it may have arisen out of and in the course of his employment. (For other cases, see Master and Servant, Dec. Dig. § 372.) *Decision rendered, April 16, 1919. 180 Pac. Rep. 159. 7. MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW-CONSTITUTIONALITY. The Legislature, in passing the Employers' Liability Act, did not violate Const. art. 18, § 7, or act beyond authority granted thereby inlimiting the application of the act to the injured employee engaged in "manual and mechanical labor." (For other cases, see Master and Servant, Dec. Dig. § 347.) Appeal from Superior Court, Maricopa County; R. C. Stanford, Judge. Action by J. A. Matthews against the Arizona Eastern Railroad Company. From judgment for plaintiff, defendant appeals. Reversed and remanded, with directions. G. P. Bullard, of Phoenix, for appellant. Ross, J. Appellee sued the appellant railroad company for damages for personal injury. Omitting formal parts, the complaint is as follows: "III. That on or about April 5, 1916, defendant was by its servants and employees engaged in installing platform scales on a platform of defendant's freight depot located in the city of Phoenix, Ariz.; that the work was not finished on that day, but by night of said day the work had progressed to such an extent that about eight square feet of said flooring of said depot platform had been removed and that said platform floor was about five feet from the ground, and when said flooring had been removed a pit was formed about eight feet wide, eight feet long, and five feet deep. "IV. Plaintiff says that defendant left said pit thus formed as above stated during the night of April 5, 1916, unlighted, uncovered, unfenced, and otherwise unprotected at a place, vicinity, and time where and when its employees, and particularly this plaintiff, were required by defendant to work in and about said premises, and that the night of April 5, 1916, was quite dark. "V. That on the night of April 5, 1916, plaintiff was in the course of his employment compelled to work all night for defendant at defendant's freight depot aforesaid, at manual labor as bill clerk, and that while so engaged at such manual labor between 4 and 5 o'clock a. m. of April 6th * he became so fatigued and hungry that it was necessary for him to have something to eat and some coffee, * * * and, in order to secure the same, he went to a nearby restaurant and then and there procured such refreshment and immediately started to return to such manual labor as such bill clerk for defendant, along the route usually traveled by plaintiff and others having business in and about defendant's freight depot, and that while so returning to his said work, and while at all times exercising due care and acting without negligence on his part, plaintiff stepped in said pit so left by defendant without any warning light or any kind of protection therefrom, and fell to the bottom of said pit, a distance of about five feet, and was injured," etc. Appellant demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action; also, on the ground that the Employers' Liability Law (Civ Code 1913, pars. 3098-3179) is unconstitutional in that it violates the Fourteenth Amendment to the federal Constitution. It answered by general denial, pleaded contributory negligence and assumed risk and also raised the question of the constitutionality of the Liability. w. At the close of the appellee's case in chief, the appellant moved the court to require him to elect whether he would ask a recovery under the Employers' Liability Act or under the common law. Whereupon, appellee announced (without any ruling of the court) his election to recover under the Employers' Act. Appellant then made the following motion: "We desire to make a formal motion to instruct for the defendant upon the ground that the state Employers' Liability Act applies to those engaged in the operation of a railroad, to those engaged in manual and mechanical labor, and that the uncontradicted evidence in this case shows that on the night in question, upon which it is claimed that plaintiff was injured, he was not engaged in any mechanical or manual labor and was not engaged to any extent in the operation of a railroad." The motion being denied, appellant introduced its evidence, and, the case being submitted to the jury, it returned a verdict in favor of appellee for the sum of $3,000. The appeal is prosecuted from the order overruling motion for a new trial and from the judgment. The assignments of error are numerous-28 in number-but it will not be necessary, from the view we take of the matter, to pass upon all of them. The first assignment is based upon the ruling of the court in denying the motion for an instructed verdict. The evidence at the time of making the motion and at the close of the entire case was in confirmation of the allegations of the complaint that appellee was a bill clerk in the employ of appellant at its freight depot in the city of Phoenix. The appellee describes the nature and character of his work as follows: "On or about April 5, 1916, I was employed as bill clerk for the Arizona Eastern Railroad Company, working at the local freight office situated between First avenue and Center street. My work was in the office, which is located in the west end of the building. My duties were billing freight, writing up the transfer book, making up tonnage reports, balancing the cashbooks, making an abstract, loading and unloading live stock, and sprinkling down hogs during warm weather. * * "We sometimes had loading and inspection of live stock at the freighthouse platform, but the bulk of it was at the union stockyards, located about 13 blocks west of the freight office, and in the yards of the Arizona Eastern, 12 blocks east of the freight office. * "I have been required to go out and inspect stock after it was loaded. I have used this platform at night in loading live stock, and in loading automobiles and all kinds of freight. * * I never loaded any stock myself, but I had to make a live stock report and an inspection of them. They were loaded by the shipper from this platform. "I don't do manual labor. I don't do manual labor at all when I was working for the Arizona Eastern. I was doing clerical work. "It was my duty to go out and check in the loading of the stock. "Between the time I went to work at half past 5 on the evening of the 5th and the time when I was injured on the morning of the 6th, my duties were the regular duties of the office, billing and writing transfers and makink abstracts, and that is all I now recall that I did between the hour I went to work and the hour I was injured. I was not handling any stock that night. The duties I refer to were clerical that night." [1, 2] Keeping this evidence in mind, as also the allegations of the complaint as to the character of the work appellee was engaged in, we now turn to the Employers' Liability Act to see if he generally, or at the time of his injury, was embraced within its terms so as to entitled him to maintain an action thereunder for damages or compensation. If the cause of action set out in his complaint and the evidence on the trial do not bring the appellee within the terms of the Employers' Lialibity Act, he ought not to be permitted to recover upon his election. The constitutional mandate contained in section 7, art. 18, is that the Legislature enact a law to make the employer liable for injuries to employees in hazardous occupations when the accident causing the injury is due to a condition or conditions of such hazardous occupation, and is not caused by the negligence of the employee; said law so to be enacted to apply to "all hazardous occupations in mining, smelting, manufacturing, railroad or street railway transportation, or any other industry." |