10 F.2d 140 | 6th Cir. | 1926
(after stating the facts as above). It appears by the stipulation of counsel that this Western Maryland car, immediately before it had been brought to Keyser, W. Va., for repairs, had been engaged in intrastate commerce between Cumberland and Aneelle, Md.; that it was loaded at Cumberland, and after it reached Aneelle it was unloaded and sent to the Keyser yards for repair; that it reached there about January 1, 1924, and was repaired on January 2d; that on January 3d it was not under orders of consignment; and that the next movement of the ear was to Cumberland, Md., to be used either in interstate or intrastate commerce as the business of the defendant would require, and that it was not in consignment on arrival at Keyser from Aneelle, Md.
This presents a wholly different situation from a case in which a car is permanently assigned or specially devoted to interstate commerce, and is taken out of a train for trifling repairs, with the intention or purpose of continuing it in interstate commerce as soon as the repairs are completed. Industrial Commission v. Davis, 259 U. S. 182, 42 S. Ct. 489, 66 L. Ed. 888. Whatever may have been its character or status while a part of an interstate train moving from Ancelle, Md., to Keyser, W. Va., not under consignment and taken to Keyser solely for the purpose of repairs, this movement and the contemplated return of the ear, after it should be repaired, from Keyser, W. Va., to Cumberland, Md., would not impress upon it the character of a ear permanently engaged in or specially devoted to interstate commerce while it remained upon the shop track at Kevser, W. Va. Minneapolis & St. Louis R. Co. v. Winters, 242 U. S. 353, 37 S. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54.
This car was not interrupted in an interstate haul to be repaired and continue its journey, nor was it actually employed in interstate commerce when taken out of service at Aneelle and sent to the Keyser shop track for repair. Eor this reason we do not think the extent of the needed repairs or the length of time it was withdrawn from intrastate service, in which it was being used immediately prior to such withdrawal, helpful, much less controlling, in determining whether this car was or was not actually or constructively engaged in interstate commerce at the time plaintiff was injured.
The Supreme Court, in Industrial Commission v. Davis, supra, cites with approval its former decision in Railroad Co. v. Winters, supra. While the facts in neither of these cases are identical with the facts admitted or proven in this case, nevertheless the principles therein announced, upon a state of facts much more favorable to the contention of plaintiff in error, are applicable and controlling in the instant case.
Judgment affirmed.
