Atlantic Coast Line R. v. Williams, 284 F. 262

Atlantic Coast Line R. v. Williams

284 F. 262

5th Cir.

1922

Check Treatment

KING, Circuit Judge.

C. M. Williаms brought an action in the United States District Court for the Southern District of Georgia against the Atlantic Coast Dine Railrоad Company (hereinafter called company). The petition contained two counts. In the first count, hе claimed damages as an employee engaged in interstate commerce under the federal Emрloyers5 Eiability Act (Comp. St. §§ 8657-8665). In the second count, he sought to recover for the same injury as a passenger. Thе court submitted the case to the jury on the first count alone, wrhtch alleged that plaintiff was an employee of the company engaged in interstate commerce; that he worked in its yards about 6 miles out of Savannah, Ga.; that to enable him to reach said yards said company furnished a shuttle train, which transported its employees without charge to their work; that one of the points where said train received said employees ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was Thirty-Seventh street, In the city of Savannah, at which street it was the custom of this train to slow up for such employees to board it; that the train had slowed up for this purpose, when, just as the plaintiff had touched the grabiron on the рlatform, the brakes, which had been applied, were released, which caused the speed of the train to increase suddenly, and caused the handhold on the rear end of the car, which plaintiff had seized, to bе snatched forward, so that his grip on the same was relaxed; that the handhold or grabiron was in a defective сondition, not firm and secure; that it got away from him, moving about 6 inches, which caused him to lose his hold, so that he was thrоwn under the car and caused to be injured. Plaintiff also alleged that the grabiron in question was a safety appliance, required by the Safety Appliance Act of Congress.

Tire evidence showed that plaintiff was a fireman on a switch engine, engaged in making up and breaking up interstate railway freight trains coming from Charleston, S. C., and Jаcksonville, Fla., into Georgia. The evidence also indicated that, when injured, he was in the act of stepping upon this train, which was moving at the rate of 2 or 3 miles per hour; that the rear platform rail was in a loose сondition, so that it swung forward or backward from 6 to 10 inches; that as he was in the act of getting on said train the brakes wеre released and the speed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍increased; that he missed one grabiron and his knee struck the step, but he сaught the platform rail, which was loose, and fell under the car. The evidence showed that this shuttle train carriеd no paid passengers; that it was an appliance furnished by the railroad company to its employеes to enable them to reach its yards to there discharge their duties. The court instructed the jury that under the evidеnce Williams was an employee engaged in interstate commerce at the time of his injury, and this instruction is one of the errors complained of.

*2641. At the time Williams was hurt, he was engaged in going to his work with the railroad company, which was clearly an employment in interstate commerce. He was in the act of getting on his employer’s shuttle train, furnished by the railroad company to him, and other employees, exclusively, for such purpose and as part of his employment. He had partially gotten on this train, and was thrown or fell therefrom, thus causing his injuries. The sole purpose he had in what he was then ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍doing was to reach the engine upon which he was engaged as fireman for the handling of interstate trains. It seems to us that he was for all practical purposes on the premises of the company engaged in going to such work, using a means the right to use which arose solely from his emplоyment, and that at the time his relation to his employer was that of an employee engaged in interstate commerce. Philadelphia Co. v. Tucker, 35 App. D. C. 123, L. R. A. 1915C, 39, affirmed 220 U. S. 608, 31 Sup. Ct. 725, 55 L. Ed. 607; Erie Railroad Co. v. Winfield, 244 U. S. 170, 173, 37 Sup. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662.

2. Error is also assigned upon the charge of the court, stating to the jury that under the federal Employers’ Riability Act, if plaintiff was negligent in boarding, the train, such negligence would not defeat his ability to recover, but would go only to the measure of damages; the grounds of error alleged bеing that there was no evidence to show that the relation of master and servant existed at ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the time of the accident, or that the plaintiff was then engaged in interstate commerce. We think that there was sufficient evidence to show that at the time of the accident the relation of master and servant had existed betweеn the parties, and for the reasons above given that the plaintiff was engaged in interstate commerce, and that the charge of the court complained of was not erroneous.

3. Complaint is made that there was a variance between the allegations of plaintiff’s petition and the evidence of negligenсe offered. We do not find that any such objection was made to the introduction of evidence submitted in supрort of the declaration, or that any alleged variance between the proof offered ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and the allegations of the petition was called to the attention of the court, or any action of the court on such alleged variance requested. For this reason we do not think the assignment of error could be nоw considered. But, even if it should, we do not find any such variance as is complained of.

There was sufficient evidеnce to warrant the court in submitting the question of negligence in this case to the jury, and in refusing to direct a verdict in favor of the defendant. The charge of the court fairly submitted all questions in the case to the jury, and the verdict is not without evidence to support it.

The judgment of the District Court is affirmed.