20 Ga. App. 303 | Ga. Ct. App. | 1917
Mrs. Hardy filed suit against the Atlanta & West Point Railroad Company. On the trial of the case the court, at the conclusion of the testimony, directed a verdict in the ■ company’s favor on its plea that the plaintiff’s husband was at the time of his death engaged as an employee of the defendant in interstate commerce. In substance the evidence upon this issue was as follows: The plaintiff is the widow of Sim Hardy. Sim Hardy was killed by an interstate passenger-train of the defendant on September 33, 1913, in the company’s yard in the city of La-.Grange, Troup county, Georgia, within a few feet of an engine which he was employed to watch. He was employed by the defendant to watch a switch-engine from six o’clock in the evening until six o’clock in the morning, and it was his duty to turn water from the tank into the engine and keep the steam on the engine, so that it would be ready for service when the servants of the defendant took charge of it in the morning. It was also his duty to throw coal into the tender from a coal-car that stood by it at night, and to keep all intruders away from the engine. The
This suit was brought by the widow of the deceased, and not by his personal representative, and can not be maintained if the Federal employer’s liability act of April 33, 1908 (35 Stat. 65, c. 149, Comp. Stat. 1913, § 8657), governs. By the terms and provisions of that act, the right of action, if any, vests in a personal representative, in a case where suit is brought to recover for the death of one employed in interstate commerce. If, therefore, the deceased husband of the plaintiff was an employee of an interstate carrier, and if his duties were interstate commerce in character at the time of his death, the action must abate. The effort of the plaintiff is to show the Federal act does not apply; the contention of the defendant is that the Federal act does.apply, and that the evidence demanded the verdict directed in favor of the defendant
Was the husband of the plaintiff employed in interstate commerce within dhe meaning of the Federal employer’s liability act, while engaged in the duty of watching the switch-engine in the defendant’s yard at LaGrange, under the circumstances appearing in the evidence? In so far as the words of the act are material here, it declares that “every common carrier by railroad, while engaging in commerce between any of the several States, . . shall be liable in damages to any person suffering injury while he is em- • ployed by such carrier in such commerce,” if the injury results wholly or in part from the negligence of the carrier or any of its officers, agents, or employees. It is essential to the right of recovery under the act not only that the carrier be engaged in interstate commerce at the time of the injury, but also that the person suffering the injury be then employed by the carrier in such commerce; and so it results, where the deceased employee is engaged in intrastate commerce, or in what is not in any proper sense commerce at all, that the party entitled to sue for the value
What are the facts upon which the judge directed a verdict in behalf of the defendant upon its affirmative plea? The deceased was employed to watch and care for an engine, the property of-an interstate carrier, while the engine was parked, or stationary, in the yards of the defendant company at LaGrange, Georgia. He did not operate the engine, nor was the engine in use at any time during his hours of service. He was not required to repair the engine in any particular, but his duties were confined to such' things as throwing coal into the tender, turning the water from the tank into the engine, and keeping the steam on so that the engine might be ready for use at the time when his duties ended. It was an instrumentality used in both interstate and intrastate commerce before and.after his death. At the time of his death and during the whole time when he was on duty the engine was not engaged in commerce at all. The engine is not to be considered as upon the same footing as a bridge, a switch, or a part of a track of an interstate carrier, because the whole track of an interstate carrier is at all times an instrument employed -in interstate commerce. The most that can be said is that the engine in question was an instrumentality that had been used in both interstate and intrastate commerce, and therefore that it was an instrument that had been used in interstate commerce. There is nothing in the record to indicate that the carrier expected to use the engine, - after the night .of the homicide, in interstate commerce, or in any commerce whatever. It is true that the evidence shows that the engine was, for a few days after the death of the employee, used as an instrument in both interstate and intrastate commerce. That the defendant company intended to, and in fact did subsequently to the homicide of plaintiff’s husband, use the engine in interstate commerce alone would be of no relevancy.
It would be useless to enumerate the cases dealing with the question here involved. Many authorities are available in support of the contentions of both parties to this suit. However, the language of Justice Holmes, speaking for the Supreme Court of the United
Unless the verdict, directed by the court was demanded by the evidence, the judgment must be reversed. If the evidence, with all reasonable deductions therefrom, authorized a contrary verdict, a new'trial must be ordered. We rule that the evidence, with all reasonable deductions therefrom, did not authorize the court to ' conclude as a matter of law that the plaintiff’s husband was at the time of his death engaged in interstate commerce.
Judgment reversed.