239 F. 855 | 2d Cir. | 1917
(after stating the facts as above). The single question presented by this record is whether lorio, at the time of injury received, was engaged in work so closely connected with interstate commerce as to be practically a part of it. Shanks v. Dela
On one hand, it is urged that the act of putting rails in storage for future use as might appear cannot be an act so closely related to interstate commerce as to be a part of it, any more than is the extraction of coal from a mine, for the purpose of operating locomotives in interstate commerce. Delaware, etc., Co. v. Yurkonis, 238 U. S. 444, 35 Sup. Ct. 902, 59 L. Ed. 1397. On the other hand, it is said that the rails, in handling which lorio was injured, were, humanly speaking, certain to be as much used for the facilitation and performance of interstate carriage as were the bolts which were being taken to repair a bridge regularly used in interstate commerce, a situation considered in Pedersen v. Delaware, etc., Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153.
It cannot be said that the rails which lorio was engaged in storing against a use that was certainly not imminent, and might never occur, were at the moment engaged in, or practically part of, interstate commerce; for that commerce was going on without any present assistance, either from lorio, or the rails on which he was working, or the men who were working with him. We therefore hold that the actual employment or use at the moment of injury of the thing upon which the person injured was working is the test of applicability of the statute, under circumstances such as shown here. By that test plaintiff below was not practically engaged in or a part of interstate commerce when he was hurt, and the judgment is reversed.
employs of a carrier, practically all of whose business was interstate commerce, is not engaged in interstate commerce while placing rails in a pit, where they were to he stored until needed, since the test whether the thing upon which the employs was working at the time of injury was an instrument of commerce depends upon its use in such commerce at the time of injury, not upon remote probabilities, or upon accidental later events. ¿j^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes