That a case may be within the federal Employers' Liability Act
(c. 149, 35 Stat. 65), it is essential that the person injured be
employed at the time of injury in some task of interstate commerce;
mere expectation of such employment is not enough. So
held
where the employee, subject to be employed in either interstate or
intrastate commerce as directed by a superior, was injured while in
quest of orders, and, but for the injury, would have received
orders requiring him immediately to make up an interstate
train.
In cases brought here under the federal Employers' Liability
Act, the rule obtains that, in the absence of manifest error, this
Court will not disturb concurrent findings of state trial and
appellate courts that the evidence of employment in interstate
commerce was insufficient to go to the jury.
89 Ohio St. 81 affirmed.
The case is stated in the opinion.
MR. JUSTICE PITNEY delivered the opinion of the Court.
The Supreme Court of Ohio (89 Ohio St. 81) affirmed a circuit
court judgment which sustained a judgment recovered
Page 242 U. S. 304
in a court of common pleas by Welsh against the Erie Railroad
Company for damages on account of personal injuries suffered by him
while in its employ as a yard conductor in the Brier Hill yard,
near Youngstown, Ohio, overruling the contention of the defendant
(now plaintiff in error) that, by certain rulings of the trial
court, defendant had been deprived of rights secured to it by the
federal Employers' Liability Act of April 22, 1908, c. 149, 35
Stat. 65.
Plaintiff's case was that, on March 7, 1911, about 11 o'clock
P.M., while in the performance of his duties, he attempted to
alight from the footboard of a slowly moving locomotive; that, in
so doing, he stepped upon a pulley wheel of an interlocking
mechanism situate between the tracks, and then covered with snow,
and the turning of the wheel under his weight caused his foot to
become entangled in the interlocking wires, as a result of which he
fell partly under the locomotive and sustained serious injuries.
The negligence attributed to defendant was the failure properly to
guard or cover the wires and the pulley wheel. There was evidence
tending to show such a knowledge on plaintiff's part of the nature
and character of the interlocking apparatus and its location
between the tracks, and such a knowledge and appreciation of the
dangers incident thereto, as to bring into play the defense of
assumption of risk (
Seaboard Air Line Ry. v. Horton,
233 U. S. 492,
233 U. S. 503;
Jacobs v. Southern Railway Co., 241 U.
S. 229,
241 U. S.
234), if the case came within the federal act, and this
depended upon whether plaintiff was employed by defendant in
interstate commerce at the time he received his injuries.
Defendant's fourth request was for the submission to the jury of
the question whether plaintiff was employed in such commerce, with
an appropriate instruction embodying the rule as to assumption of
risk in case they should find him to have been so employed. This
request, which in terms invoked the protection of the act of
Congress, was refused, and the trial court, in the instructions
Page 242 U. S. 305
given, declined to follow that act or the common law, and, on
the contrary, instructed the jury that, under a state statute held
to be applicable, the assumption of risk was not a defense.
The rulings of the trial court were sustained by the supreme
court (and presumably by the circuit court) upon the ground that,
upon the undisputed evidence, plaintiff was not at the time
employed in interstate commerce. As to this question, there was
testimony tending to show that defendant was a common carrier by
rail engaged in commerce between the states, and that plaintiff was
and for some time had been a yard conductor engaged in night duty
at its Brier Hill yard, a mile or more west of Youngstown; that he
performed miscellaneous services in the way of shifting cars and
breaking up and making up trains, under orders of the yardmaster,
and had to apply frequently to the latter for such orders; that,
when any orders thus given had been performed, or had "run out," he
usually reported at the yardmaster's office for further orders;
that, on the night in question, plaintiff, with a yard crew, took a
freight car loaded with merchandise destined to a point without the
state, and a caboose which, so far as appears, was not to go beyond
the limits of the state, from the Brier Hill yard eastwardly to the
"F.D. yard" in Youngstown, where the freight car was placed upon a
siding, so that it might be made up into a train by another crew;
that they then took the caboose a short distance farther and placed
it upon another siding; that they next took the engine to a water
plug and took on water, and then returned with it to the Brier Hill
yard; that, on this return journey, the engine was slowed down near
the yardmaster's office, which is at the easterly end of that yard,
so as to enable Welsh to report for further orders, all previous
orders having been executed, and that the injury was received while
he was attempting to alight for that purpose.
Page 242 U. S. 306
It was in evidence also that the orders plaintiff would have
received had he not been injured on his way to the yardmaster's
office would have required him immediately to make up an interstate
train. Upon the strength of this, it is argued that his act at the
moment of his injury partook of the nature of the work that, but
for the accidental interruption, he would have been called upon to
perform. In our opinion, this view is untenable. By the terms of
the Employers' Liability Act, the true test is the nature of the
work being done at the time of the injury, and the mere expectation
that plaintiff would presently be called upon to perform a task in
interstate commerce is not sufficient to bring the case within the
act.
Illinois Central R. Co. v. Behrens, 233 U.
S. 473,
233 U. S.
478.
There remains the contention that plaintiff's act in stepping
from the yard engine was in completion of his trip to the "F.D.
yard" with the interstate car, and hence was itself an act in
furtherance of interstate commerce. This cannot be answered by
saying, in the words used
arguendo by the state supreme
court (89 Ohio St. 88), that "he was not then and there employed in
moving or handling cars engaged in interstate commerce." The
question remains whether he was performing an act so directly and
immediately connected with his previous act of placing the
interstate car in the "F. D. yard" as to be a part of it or a
necessary incident thereto.
New York Central & Hudson River
R. Co. v. Carr, 238 U. S. 260,
238 U. S. 264;
Shanks v. Delaware, Lackawanna & Western R. Co.,
239 U. S. 556,
239 U. S. 559.
And this depends upon whether the series of acts that he had last
performed was properly to be regarded as a succession of separate
tasks or as a single and indivisible task. It turns upon no
interpretation of the act of Congress, but involves simply an
appreciation of the testimony and admissible inferences therefrom
in order to determine whether there was a question to be submitted
to the jury as to the fact of employment
Page 242 U. S. 307
in interstate commerce. The state courts held there was no such
question, and we cannot say that, in so concluding, they committed
manifest error. It results that, in the proper exercise of the
jurisdiction of this Court in cases of this character, the decision
ought not to be disturbed.
Great Northern R. Co. v. Knapp,
240 U. S. 464,
240 U. S.
466.
Judgment affirmed.