Action by an employee of defendant for personal injuries sustained by him while assisting in handling a heavy telegraph pole at Altamont, Missouri. The action was brought under the Federal Employers’ Liability Act. Trial below resulted in a verdict for plaintiff in the sum of $25,0:00 and defendant has appealed.
The assignments of error made by defendant are, first, that the trial court should-have given defendant’s instruction in the nature of a demurrer to the evidence, because the petition is based solely upon the Federal Employers ’ Liability Act and the evidence fails to show facts permitting recovery by plaintiff under said act; second, because the evidence shows that plaintiff assumed the risk, which resulted in his injury; and, third, because the court erred in overruling defendant’s motion for new trial on account of the excessiveness of the verdict. We will address ourselves to these propositions only.
The defendant was operating a line of railroad in Missouri, Iowa and other states, and was engaged in both 'interstate and intrastate commerce. In connection with a telegraph company and under an arrangement not here important, defendant operated a telegraph line, as an appurtenance to its railroad, which it was its duty to keep* in repair. This telegraph line was used in facilitating and protecting the movement of trains engaged in interstate commerce.
For the purpose of considering whether plaintiff was engaged in interstate commerce at the time he was injured, we will assume, without so deciding, that the evidence supports the. allegations of the petition touching the negligence of. defendant. Thus will be eliminated *479 a recital of facts which do not go to the question to be first determined.
It became necessary for defendant to use two 45-foot telegraph poles in repairing its telegraph line at Trenton, Missouri. Poles of that size were stored at Altamont with poles of different sizes. Plaintiff was employed as a member of the bridge-and-building gang, which was then engag’ed in work at Altamont. He, with others, was summoned to assist in getting the desired poles out of this pile of telegraph poles, stored on a rack near the railroad track, and to help in placing such poles upon a flat car set at that point for the purpose. It became necessary to move other poles in order to get to the poles desired for use at Trenton. While he was engaged in helping move one of these poles, plaintiff was injured. Details are unnecessary. The two 45-foot poles were finally loaded upon the flat car and taken to Trenton, where they were unloaded and within two or three days thereafter were used by defendant in repairing said telegraph line. The only connection plaintiff had with the repair of the telegraph line was the work he was doing in helping to load the poles a,t the time he was injured. Does such state of facts permit the maintenance of the suit by plaintiff under the Federal Employers’ •Liability Act?
Plaintiff was not directly employed in interstate commerce at the time he was injured. The question is whether his act in helping to load the poles upon the flat car, to be thereafter taken by others to another place and there to be handled by other persons in repairing a facility used in interstate commerce, was work so closely related to or connected with interstate commerce as to be practically a part of it? If so, he can maintain his action under the Federal Employers’ Liability Act; otherwise, he cannot.
Defendant cites and relies upon Chic., Burlington & Q. Railroad v. Harrington,
We think the work being done by plaintiff in the case' before us was not as closely connected with interstate commerce as was that of deceased in the Harrington case. Harrington was a member of the switching crew which was moving the coal. Plaintiff here was not a member of the train crew. He is in the same position a laborer would have been who had helped shovel the coal into the coal car just before Harrington’s crew started to move the car, if the car had been loaded in such manner. Plaintiff’s membership' in the bridge-and-building gang does not affect the situation in any way. He was in the same position as if he had not been previously employed by defendant in any capacity and had been specially employed to assist in loading the telegraph poles upon the flat car. Under the decisions, such employment would have enabled him to maintain the action under the Federal Employers’ Liability Act, if his work at the time of his injury was so closely connected with interstate commerce as to be a part of it.
Plaintiff undertakes to distinguish the Harrington case from the case at bar. Counsel urge that there is a distinction between cars and locomotives, on the one hand, and facilities, such as tracks, bridges, telegraph lines, semaphores, etc., on the other. It is true that locomotives and cars may, at one time, be engaged in in
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terstate commerce and, at other times, in intrastate commerce and that the particular use at the time of the injury to the employee, working thereon or therewith, determines whether the action for such injury should he brought under the Federal Employers’ Liability Act or the state law. The partial use in interstate commerce of facilities like tracks and telegraph lines gives them the fixed character of interstate facilities. But the Harrington case made no such distinction. The
act
of plaintiff in that case in assisting in the switching movement, not the designated use of the coal, was regarded as
too remote
from interstate commerce to be practically a part of it. The same situation existed in Del., Lack. & West. R. R. v. Yurkonis,
Counsel urge a further distinction in that the coal was not intended for immediate use, while the telegraph poles were so designated. The use of the coal in the Harrington case might have been as immediate as that of the telegraph poles. Both were designated for a particular use at the time they were being moved and when the injury occurred. The only reasonable distinction we can see is that some of the coal might not be used in interstate commerce, while the telegraph poles were designated for the particular use of repairing a facility, with the permanently fixed character of an interstate facility. As above suggested, the Harrington case was not ruled on any such distinction, but the Federal Employers’ Liability Act was held inapplicable because “there was no such close or direct relation to interstate transportation.”
The case of Minn. & St. L. Railroad v. Administratrix of Nash,
Counsel for plaintiff say that this case is distinguished from the case at bar by the fact that depots, outbuildings, round-houses and facilities of.that character are only remotely connected with interstate commerce and that work on such facilities is more remote from such interstate commerce. Some of the cases do make such distinction, but the Nash case was ruled on cases where the act in which the injured was engaged, not the facility, was held to be too remote, such as the Harrington and Yurkonis cases.
The case of Shanks v. Del., Lack & West. Railroad,
In Del., Lack. & West. Railroad v. Yurkonis,
Plaintiff places great .reliance upon) .the .case of Pedersen v. Del., Lack. & West. Railroad,
We are not in doubt that the telegraph line, by use in furthering and protecting interstate commerce, became definitely impressed with the character of an interstate facility, and that one engaged in operating or repairing such facility was at least engaged in work so closely related to interstate commerce as to be a part of it. But this does not mean that one engaged in work, which will ultimately enter into the repair of such facility and thereby become a part of it, no matter how remotely, is engaged in work so closely related to inter *484 state commerce as to be a part of it. None of tbe cases cited, unless it be the Coons case, to be noticed later, go as far as we are asked to go in this case. In none of the oases where recoveries under the Federal Employers’ Liability Act were sustained, unless it be in the C'oons case, was the work in which the injured party was engaged at the time of his injury so far removed from interstate commerce as here.
In Brier v. Chicago, R. I. & P. Railroad Co.,
In Erie Railroad Co. v. Collins,
In Erie Railroad Co. v. Szary,
In Coal & Coke Ry. Co. v. Deal,
In 'Collins v. ¡Michigan Central R. C'o.,
In L. & N. Railroad Co. v. Mullins’ Admr.,
In Yarde v. Hines,
In Brewer v. Mo. Pac. Ry. Co., 259 S. W. (Mo. App.) 825, the plaintiff was injured while riding a railroad motor car in going to his work of painting’ block signals used in interstate commerce.
In Hines v. Industrial Commission, 129 N. E. (Ill.) 175, the deceased was killed while engaged in hauling stringers for the repair of the railroad bridge used in interstate commerce. His work was thus closely connected with such commerce.
In So. Pac. Co. v. Industrial Accident Comm. of California,
In the case of Lammars v. Chicago-G. W. Railroad Co.,
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In Holmberg v. Lake Shore Ry.,
In Kansas City Southern Ry. Co. v. Martin,
In our opinion the only case cited by respondents where the connection of the injured employee with interstate commerce may be regarded as being as remote as that of the plaintiff in the cáse at bar, is Coons v. L.
& N.
Railroad Co.,
The work in which plaintiff in the case at bar was. engaged when injured was removed from the actual *487 work of repairing an interstate facility by at least three separate and distinct operations. After being loaded upon the flat car, the telegraph poles had to be hanled to Trenton. A second operation took place when they were unloaded there. A third operation took place when the poles were moved to the point where they were to be used. And, if the persons who removed the poles from the unloading place at Trenton were not employees engaged in the actual repairs, the work of still other employees was involved. At least three such operations must have occurred before the actual work of placing the poles in the telegraph line could begin.
The line must be drawn somewhere. If plaintiff was engaged in interstate commerce when he was injured, then the railroad employee who felled the tree which was made into the telegraph pole would be likewise engaged, if that particular tree had been set ap'art for such purpose. Likewise, the railroad employee who sharpened the axe, used by the employee who felled such tree, would come within the Federal Employers ’ Liability Act, and we would have a connection with interstate commerce about as close as that which ‘ ‘ the priest all shaven and shorn” bore to the famous “house that Jack built.”
It is not here necessary, and we will not undertake, to say where the line should be drawn; but we are convinced, from the trend of the decisions discussed, that such line must be drawn at some operation in the repair of a facility of interstate commerce nearer to and more closely connected with it than a task three or four times removed from actual work upon such facility.
We hold that the work which plaintiff was doing in helping to load the telegraph poles upon the flat car, which necessitated thereafter a train movement to Trenton and unloading thereat and removal therefrom before the poles could be used in the repair of the telegraph line, was too remote and cannot be said to have been, so closely related to interstate commerce as to be practically a part of it!
*488 It therefore becomes unnecessary to notice the other contentions of defendant that plaintiff assumed the risk and that the verdict is excessive.
It results that the judgment should be reversed without prejudice to any right the respondent may have to bring suit hereafter under the laws of the State of Missouri. It is so ordered.