Plaintiff's intestate was killed while moving an engine with
attached intrastate car. There was evidence, strong but not
conclusive, that the purpose of the movement was to reach and move
another car in interstate commerce. Not asking to have this
considered by the jury, defendant unsuccessfully insisted that the
trial judge deal with the case as a case of interstate commerce
governed by the Federal Employers' Liability Act. The case went to
the jury as one dependent on the state law, and there was a money
verdict which admittedly could not be sustained if the federal act
applied.
Held that not the intrastate character of the moving
car, as erroneously held by the court below, but the purpose of the
operation involving the movement, must determine whether deceased
was engaged in interstate commerce.
That the purpose was for the jury to determine, and defendant,
not having sought the jury, or made any request or objection in the
trial court which was not rightly overruled, could not complain of
the verdict.
165 Ky. 65 affirmed.
Page 242 U. S. 14
The case is stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the court.
The plaintiff's intestate was a fireman upon a switching engine
which was moving upon a switch track. A caboose stood upon the main
track so near to where the engine moved that the deceased struck
it, and was killed. His administrator brought this action against
the railroad, the plaintiff in error, for causing the intestate's
death, and got a verdict, which, it is admitted, cannot be
sustained if the deceased was engaged in interstate commerce. The
dealings of the state courts with that question are the ground for
the present writ of error. The judgment for the plaintiff was
affirmed by the Court of Appeals. 165 Ky. 658.
The business upon which the deceased was engaged at the moment
was transferring an empty car from one switch track to another.
This car was not moving in interstate commerce, and that fact was
treated as conclusive by the Court of Appeals. In this, the court
was in error, for if, as there was strong evidence to show, and as
the court seemed to assume, this movement was simply for the
purpose of reaching and moving an interstate car, the purpose would
control, and the business would be interstate. The difference is
marked between a mere expectation that the act done would be
followed by other work of a different character, as in
Illinois
Central R. Co. v. Behrens, 233 U. S. 473,
233 U. S. 478,
and doing the act for
Page 242 U. S. 15
the purpose of furthering the later work.
See New York
Central & Hudson River Co. v. Carr, 238 U.
S. 260,
238 U. S. 263;
Pennsylvania Co. v. Donat, 239 U. S.
50;
Kalem Co. v. Harper Bros., 222 U. S.
55,
222 U. S.
62-63.
But it is necessary to see how the case was dealt with in the
trial court. The railroad company did not ask to go to the jury on
the question whether the deceased was engaged in interstate
commerce. It simply asked the court to direct a verdict, on the
ground, among others, that it appeared as matter of law that he was
so engaged. But if the question had been left to the jury, and they
had disbelieved the testimony that the empty car was moved for the
ulterior purpose of interstate commerce, there would have been no
error of law in allowing a verdict for the plaintiff to stand. It
is true that the judge seems to have assumed that the business in
hand was intrastate, but the only objection indicated was to his
not ruling the contrary; and, as the railroad did not ask to go to
the jury, and the only ruling requested was properly denied, the
judgment must stand.
Judgment affirmed.
