234 F. 1 | 6th Cir. | 1916
Kindlesparker recovered a verdict and judgment under the federal Employers’ Eiability Act for personal injuries sustained while in the employ of the railroad company; it will be convenient to refer to Kindlesparker as plaintiff, and the railroad company as defendant. The sole issue presented here is whether plaintiff was engaged in interstate commerce at the time he received his injuries. The southern terminus of defendant’s railroad was at Kalamazoo and the northern terminus at Woodbury, within the state of Michigan, and the business consisted of general passenger and freight traffic. The railroad, however, connected with “all of the roads” passing through Kalamazoo, and at Woodbury with the Pere Marquette line. It is not shown what railroads pass through Kalamazoo, though the superintendent testified that defendant’s local agent in that city “would have the records of shipments, say from any station on our line to Chicago.” Further, it was conceded by defendant, at the trial below, that the freight trains, operated on its line “contained indiscriminately cars bound between — cars and freight generally bound between — points entirely within this state, and points from outside of the state to this state, and from points in this state to points outside of the state”; and admittedly the defendant’s connection at Wood-bury was with an interstate road — the Pere Marquette line.
The defendant owned and operated six locomotive engines; only three of these' engines were used daily, one in the passenger service, and one in the freight traffic over the line, and one in the switching-service at Kalamazoo. The other three, except on extraordinary occasions, were kept in the roundhouse and ready for service, or in the shops under repair; in other words, subject to this rotation in service, five of the engines were used alike in general service and one of them in switching service; and the engines were all used indiscriminately in the movement of intrastate and interstate traffic, regardless of the particular service in which they were employed.
Plaintiff received his injuries from engine No. 4, July 3, 1914, and while engaged in repairing it. He was in the employ of defendant as helper in its shops at Kalamazoo, and at times acted as fireman. April 15, 1914, engine No. 4 was placed in the shops for general repairs, and the repairs were completed July 4th. July 3, engine No. 4 was removed under its own steam from the shops to the turntable, where the boiler maker “set the pops”; it was then taken to the cinder pit, and plaintiff, acting under instruction to enter the pit beneath the engine and place the grease cellar upon it, received his injuries while
“Having elected to enter into the carriage of interstate freights and thus subjected-itself to the control'of the Commission, it would not be competent for the company to limit that control, in respect to foreign traffic, to certain points on its1 road and exclude other points.”
In United States v. Union Stockyards, 226 U. S. 286, 304, 33 Sup. Ct. 83, 88 (57 L. Ed. 226), when speaking of an intrastate service in connection with an interstate movement of freight, it was held:
“That the service is performed wholly in one state can make no difference if it is a part of interstate carriage.”
It results that such an appropriation as defendant has made of its railroad and yards subjects it to the exactions of the federal Em? ployers’ Liability Act, since it prevents effective distinction from the rule laid down in the opinion of the court in the Pedersen Case, 229 U. S. 146, 152, 33 Sup. Ct. 648, 650 (57 L. Ed. 1125, Ann. Cas. 1914C, 153):
“True, a track or bridge may be used in both interstate and intrastate commerce, but when it is so used it is none the less an instrumentality of the .former; nor- does its double use prevent the employment of those who are -engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce.”
It has already been shown that defendant possessed six engines and used three of them respectively in the passenger, freight and switching service daily; that it used the engine in question, No. 4, in the switching service at Kalamazoo for fifteen days in March and April, 1914, in the passenger service for three days in March, in such switching service for six days between the 7th and 16th of July, and in the freight service for four days between the 13th and 20th of that month; that the engine was undergoing necessary repairs in the shops between April 15th and July 4th; that, except as to the service described, the engine was either idle or under repair between the dates of service in March and July, as stated; and that while this engine was used in switching operations, as stated, “it handled indiscriminately intrastate and interstate freights.” It is to be observed that in describing the traffic operations in which the engine was used there is no showing of any specific intrastate service; such service as to switching was interstate and intrastate indiscriminately, and as to freight operations on the road the trains were “composed of cars containing intrastate and interstate commerce.”
The nature and effect of such service as this, both before and after the period of repair, now becomes still more evident. It was the same double service to which the road and yards and (when in use) all the engines of the company were alike constantly devoted; the strong tendency of the evidence is that the service was uniformly of such a nature that the engine in issue could not at any time have been placed in use at all (it certainly was not put in use) except in this double and unitary character of service — if indeed this was not true as to all the engines. The inevitable effect of this service was to impress every instrumentality, so used, with an interstate character, quite as certainly as with an intrastate character, and also to impose upon the carrier the same degree of duty and liability respecting the fitness and condition of the instrumentality for use under the federal act as if it had been designed and used exclusively for interstate service; indeed, while such conditions as are here shown prevailed, the instrumentality was not susceptible of use or repair without regarding and treating it as an instrument of interstate commerce. This is not to say that if plaintiff had been engaged as engineman or fireman and injured in operating this engine while handling purely intrastate commerce, he could have recovered under the federal act; nor is it to say that in such event the service which the engine may have performed either before or after the accident, would have changed the nature of the service he was so performing as engineman or fireman at the time of his injury. The theory of the carrier’s nonliability in the situation thus assumed is for present purposes sufficiently illustrated by the decision of the Supreme Court in Chicago, Burlington & Quincy
When the decisions are considered, which, on the one hand, allow recovery, and on the other disallow recovery, under the federal act, a marked distinction is found concerning the responsibility of a carrier for injuries suffered by an employé engaged in repairing an instrument interstate in character, and injuries received by an employé using or operating the same kind of an instrument while handling only intrastate traffic. As to the repairer, his service partakes of the character of the instrumentality; as to the operative, his service partakes of the character of the traffic. The reason for this distinction is that the repair is so directly and vitally related to commerce between the states as to characterize the work of the employé engaged in the repair as an act of interstate commerce. This distinction, for example, is well stated by Judge Woolley in Boyle v. Pennsylvania R. Co., 228 Fed. 266, 142 C. C. A. 558, where, in view of the facts of that case, the reason for denying application of decisions which concern the repair and not the use of the instrumentality in question received expression (228 Fed. 269, 142 C. C. A. 561):
“There is a distinction between employment in preparing an instrument of commerce for use, and employment in using such an instrument in commerce. Preparation of an instrument for use in commerce .of both kinds necessarily means preparation for use in commerce of either kind, and as one kind is interstate commerce, it follows logically that such preparation is for use in interstate commerce, but employment connected with the actual use of such an instrument is a part of intrastate or interstate commerce according as the instrument is in use in commerce of one kind or the other.”
Under the facts of the instant case, however, the controlling illustration of the distinction thus sought to be made clear, appears in the Pedersen Case, where it was held that a railroad company engaged in interstate commerce was liable to its employé who suffered injury while carrying bridge bolts for use in repairing one of the company’s railroad bridges, Mr. Justice Van Devanter saying (229 U. S. 151, 152, , 33 Sup. Ct. 649 [57 L. Ed. 1125, Ann. Cas. 1914C, 153]):
• “Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars, and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct ‘any defect or insufficiency * * * in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment’ used in interstate commerce. But independently of the statute, we are of opinion that the work of keeping such instrumen-talities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. * * * The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?”
We are not unmindful of the contention of counsel that analysis of the decision in the Pedersen Case fairly shows that the court did not intend the rule there laid down as to railroad tracks and bridges to be extended to an ambulatory instrument like an engine, which may be used entirely for one or the other kind of commerce, or both kinds. It is true that after enumerating tracks, bridges, engines and cars as instrumentalities in interstate commerce, the court mentioned the fact that it was then concerned “only with the work of maintaining them in proper condition after they had become such instrumentalities and during their use as such”; but this is in recognition of the fact that
“Among the instruments * * * to which the power extends are the railroads over which transportation from one state to another is conducted, (and) the engines and cars by which such transportation is effected. * * * ”
In view of that decision and the other decisions before cited, it cannot be necessary to dwell upon this feature of counsel’s argument.
“They hardly go beyond fixing the burden of proof and declaring that, where the facts show the case may well have been within the statute (federal Employers’ Liability Act), the initial burden is satisfied, and it is for the defendant to show the contrary.”
“Under the existing facts, can the length of time required for the repairs change the legal situation? If, so, where is the line to he drawn? How many days’ temporary withdrawal would suffice to take it out of the purview of tlie act? And is it material whether the repairs take place in a roundhouse or in general shops? Is not the test whether the withdrawal is merely temporary in character?”
No sufficient answer to this could be found in that case; and the only difference perceived here is in point of time, not in principle.
We conclude upon the whole that the engine was at the time of the repair in question an instrument of the interstate commerce in which the defendant was engaged, and that the work of plaintiff thereon was a part of such commerce.
The judgment must be affirmed; with costs.