124 Neb. 727 | Neb. | 1933
The plaintiff, who is appellee, was injured while in the employ of the defendant railway company, appellant, an interstate carrier. He brought suit in Douglas county under the federal employers’ liability act, and recovered, judgment, from which defendant appeals.
The evidence relating to the issue as to whether the plaintiff was engaged in interstate transportation at the time of his injury is not in dispute. It was all offered by plaintiff and consists of the testimony of plaintiff and members of the switching crew and clerk of the defendant company.
Plaintiff for many years had been employed as a member of a local switching crew at Missouri Valley, Iowa, (a junction point) whose duty it was to break up and
The appellee claims that so long as plaintiff, as a' switchman, was engaged in the business of breaking up and reclassifying the freight cars in trains 46, 47 and 48 he was employed in interstate commerce and entitled to the benefits of the federal employers’ liability act. The defendant contends that plaintiff was not engaged in interstate transportation at the time of his injury, nor in work so closely connected therewith as to be practically a part of it, and further that defendant was not engaged at that time in interstate transportation.
“The test of whether an employee of a railway com-’ pany is subject to the federal employers’ liability act is: Was the employee, at the time of the injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?” Hensley v. Chicago, St. P., M. & O. R. Co., 118 Neb. 690. The state courts are bound by the interpretation of the federal act given by the federal courts. In the opinion it is said: “Those railway employees who are engaged in working upon any instrumentality that is not, at the time, engaged or being used in interstate traffic are generally without the statute.”
The United States supreme court in Illinois Central R. Co. v. Behrens, 233 U. S. 473, decided that congress in enacting the federal employers’ liability act has confined the liability imposed by that act to injuries occurring to employees when the particular service in which they
The case of Rogers v. Canadian Nat. R. Co., 246 Mich. 399, arose where an employee was engaged in moving to a railroad yard empty freight cars which had finished their interstate service and had not entered on any other movement and were awaiting routing. Such cars, the' court held, were not engaged in interstate commerce during switching operations. While the facts in that case are not parallel with this case, the court announced the rule that the character of these cars as instruments of
In Phillips v. Union Terminal R. Co., 328 Mo. 240, the plaintiff, a switching foreman, was engaged in switching cars containing both state and interstate commerce. He had been directed to deliver certain interstate cars to the Great Western yards, and in order to facilitate the movement of those cars he cut off three empty coal cars and left them on another switching track. He and the crew then returned to the three empty cars for the purpose of spotting- them at a place to be loaded with sand. The court held he was not engaged in interstate commerce.
In Mayor v. Central Vermont R. Co., 26 Fed. (2d) 905, the court announced: “Injury to employee during switching operations, by which car in intrastate commerce was moved by engine disconnected from interstate train, for purpose of shifting the intrastate car to a siding of its consignee, held not within federal employers’ liability act (45 U. S. C. A. secs. 51-59, Comp. St. secs. 8657-8665), because not occurring in interstate commerce, though engine and car were subsequently joined to interstate train and proceeded together for some dis-stance, and switching movement was interrupted by placing entire train on siding, so as to ' permit the passage of another interstate train.” See, also, Wise v. Lehigh Valley R. Co., 43 Fed. (2d) 692; Illinois Central R. Co. v. Peery, 242 U. S. 292; Grigsby v. Southern R. Co., 3 Fed. (2d) 988; Chicago & Eastern Illinois R. Co. v. Industrial Commission, 284 U. S. 296.
Applying the principle decided in those cases, it follows that plaintiff was not, at the time of his injury, engaged in interstate transportation, nor in work so closely related to it as to be practically a part of it, nor was the defendant so engaged.
It has been repeatedly held that a car loses its interstate character as soon as it reaches its destination. The car here involved can only be designated as interstate while it was a part of the train that conveyed it into the yards at Missouri Valley, to which place it was billed. As soon as it reached there, it no longer had any interstate character.. It was switched back and forth as a matter of convenience in handling while breaking up train 47, and other trains, and if the injury had occurred while it was so attached to interstate cars probably that would bring the plaintiff within the act. But the breaking up of those trains was completed. The last act of plaintiff before the injury was to set the coupling on a string of interstate cars. He then walked a distance from that place to where the rest of the crew were ready to switch the flat-car. When he began his duties again at the flat-car there was no further work, either proximate or remote, to be done by the crew with interstate cars before the flat-car was to be switched. Appellee cites many cases, among them Stewart v. Wabash R. Co., 105 Neb. 812, where a switching crew took some cars to a Y in order to clear a main track for a passing interstate train. This court held that fact, in connection with other circumstances, brought the injured employee within the act; so, too, in New York Central & H. R. R. Co. v. Carr, 238 U. S. 260, where a brakeman was injured while setting brake on an intrastate car, which had been
There are several other errors alleged by appellant, but it is unnecessary to advert to them, inasmuch as the case must be reversed and dismissed because plaintiff did not bring himself within the federal employers’ liability act.
The judgment is reversed, with direction to dismiss plaintiff’s action.
Reversed.