Under the Employers' Liability Act. a right of recovery exist
only where the injury is suffered while the carrier is engaged in
interstate commerce and while the employee is employed in such
commerce, but it is not essential that the co-employee causing the
injury be also employed in such commerce.
One engaged in the work of maintaining tracks, bridge, engines,
or cars in proper condition after they have become and during their
use as instrumentalities of interstate commerce is engaged in
interstate commerce, and this even if those instrumentalities are
used in both interstate and intrastate commerce.
One carrying materials to be used in repairing an
instrumentality of interstate commerce is engaged in such commerce,
and so
held that a railroad employee carrying bolts to be
used in repairing an interstate railroad and who was injured by an
interstate train is entitled to sue under the Employers' Liability
Act of 1908.
A federal court is without authority to reverse a judgment in
favor of one party and direct a judgment in favor of the other
non obstante veredicto. Slocum v. New York Life Ins.
Co., 228 U. S. 364.
197 F. 537 reversed.
The facts, which involve the construction of the Employers'
Liability Act of 1908 and the determination of what constitutes
being engaged in interstate commerce, are stated in the
opinion.
Page 229 U. S. 149
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action under the Employers' Liability Act
* of April 22,
1908, 35 Stat. 65, c. 149, to recover for personal injuries
sustained by the plaintiff through the negligence of a co-employee
while both were in the defendant's service. At the trial, the
circuit court refused to direct a verdict in the defendant's favor,
and the jury returned a verdict for the plaintiff, assessing his
damages at $6,190. Subsequently the court, following a local
statute (Penn.Laws 1905, p. 286, c. 198), entered judgment for the
defendant notwithstanding the verdict on the ground that the latter
was not sustained by the evidence. 184 F. 737. The judgment was
affirmed
Page 229 U. S. 150
by the circuit court of appeals, 197 F. 537, and the plaintiff
sued out this writ of error.
The evidence, in that view of it which must be taken here, was
to the following effect: the defendant was operating a railroad for
the transportation of passengers and freight in interstate and
intrastate commerce, and the plaintiff was an iron worker employed
by the defendant in the alteration and repair of some of its
bridges and tracks at or near Hoboken, New Jersey. On the afternoon
of his injury, the plaintiff and another employee, acting under the
direction of their foreman, were carrying from a tool car to a
bridge, known as the Duffield bridge, some bolts or rivets which
were to be used by them that night or very early the next morning
in "repairing that bridge," the repair to consist in taking out an
existing girder and inserting a new one. The bridge could be
reached only by passing over an intervening temporary bridge at
James Avenue. These bridges were being regularly used in both
interstate and intrastate commerce. While the plaintiff was
carrying a sack of bolts or rivets over the James Avenue bridge, on
his way to the Duffield bridge, he was run down and injured by an
intrastate passenger train, of the approach of which its engineer
negligently failed to give any warning.
The circuit court ruled that an injury resulting from the
negligence of a co-employee engaged in intrastate commerce was not
within the terms of the federal act, and the circuit court of
appeals, although disapproving that ruling, held that, under the
evidence, it could not be said that the plaintiff was employed in
interstate commerce, and therefore he was not entitled to recover
under the act.
Considering the terms of the statute, there can be no doubt that
a right of recovery thereunder arises only where the injury is
suffered while the carrier is engaged in interstate commerce, and
while the employee is employed by the carrier in such commerce; but
it is not essential,
Page 229 U. S. 151
where the causal negligence is that of a co-employee, that he
also be employed in such commerce, for, if the other conditions be
present, the statute gives a right of recovery for injury or death
resulting from the negligence "of any of the . . . employees of
such carrier," and this includes an employee engaged in intrastate
commerce.
Second Employers' Liability cases, 223 U. S.
1,
223 U. S. 51.
That the defendant was engaged in interstate commerce is
conceded, and so we are only concerned with the nature of the work
in which the plaintiff was employed at the time of his injury.
Among the questions which naturally arise in this connection are
these: was that work being done independently of the interstate
commerce in which the defendant was engaged, or was it so closely
connected therewith as to be a part of it? Was its performance a
matter of indifference so far as that commerce was concerned, or
was it in the nature of a duty resting upon the carrier? The
answers are obvious. Tracks and bridges are as indispensable to
interstate commerce by railroad as are engines and cars, and sound
economic reasons unite with settled rules of law in demanding that
all of these instrumentalities be kept in repair. The security,
expedition, and efficiency of the commerce depends in large measure
upon this being done. Indeed, the statute now before us proceeds
upon the theory that the carrier is charged with the duty of
exercising appropriate care to prevent or correct "any defect or
insufficiency . . . in its cars, engines, appliances, machinery,
track, roadbed, works, boats, wharves, or other equipment" used in
interstate commerce. But, independently of the statute, we are of
opinion that the work of keeping such instrumentalities in a proper
state of repair while thus used is so closely related to such
commerce as to be in practice and in legal contemplation a part of
it. The contention to the contrary proceeds upon the assumption
that interstate commerce by railroad can
Page 229 U. S. 152
be separated into its several elements, and the nature of each
determined regardless of its relation to others or to the business
as a whole. But this is an erroneous assumption. The true test
always is: is the work in question a part of the interstate
commerce in which the carrier is engaged?
See McCall v.
California, 136 U. S. 104,
136 U. S.
109-111;
Second Employers' Liability Cases,
supra, 223 U. S. 6,
223 U. S. 59;
Zikos v. Oregon R. & Navigation Co., 179 F. 893,
897-898;
Central R. Co. v. Colasurdo, 192 F. 901;
Darr
v. Baltimore & O. R. Co., 197 F. 665;
Northern Pacific
Ry. Co. v. Maerkl, 198 F. 1. Of course, we are not here
concerned with the construction of tracks, bridges, engines, or
cars which have not as yet become instrumentalities in such
commerce, but only with the work of maintaining them in proper
condition after they have become such instrumentalities and during
their use as such.
True, a track or bridge may be used in both interstate and
intrastate commerce, but when it is so used, it is nonetheless an
instrumentality of the former; nor does its double use prevent the
employment of those who are engaged in its repair or in keeping it
in suitable condition for use from being an employment in
interstate commerce.
The point is made that the plaintiff was not, at the time of his
injury, engaged in removing the old girder and inserting the new
one, but was merely carrying to the place where that work was to be
done some of the materials to be used therein. We think there is no
merit in this. It was necessary to the repair of the bridge that
the materials be at hand, and the act of taking them there was a
part of that work. In other words, it was a minor task which was
essentially a part of the larger one, as is the case when an
engineer takes his engine from the roundhouse to the track on which
are the cars he is to haul in interstate commerce.
See Lamphere
v. Oregon
Page 229 U. S. 153
R. & Navigation Co., 196 F. 336;
Horton v.
Oregon &c. Co., 130 P. 897;
Johnson v. Southern
Pacific Co., 196 U. S. 1,
196 U. S. 21.
What has been said shows that there was evidence to sustain a
finding that, at the time of the plaintiff's injury, the defendant
was engaged, and he was employed by it, in interstate commerce, and
as in other respects the case was one for the jury, the court
rightly denied the defendant's request that a verdict in its favor
be directed. A motion for a new trial was interposed by the
defendant, but no ruling was had upon it, doubtless because the
court concluded that it could and should render judgment for the
defendant on the evidence notwithstanding the verdict. In this the
court was in error, first, because it was without authority so to
do (
Slocum v. New York Life Insurance Co., 228 U.
S. 364), and second because the evidence did not warrant
such a judgment. Unless the motion for a new trial was well taken,
judgment should have been given for the plaintiff on the verdict,
and, subject to that qualification, the plaintiff is now entitled
to such a judgment.
The judgments of the Circuit Court and the circuit court of
appeals are reversed, and the case is remanded for further
proceedings in accordance with this opinion.
Judgment reversed.
* The act and the amendment of April 5, 1910, are printed in
full in 223 U.S. p.
223 U. S. 6.
MR. JUSTICE LAMAR, dissenting:
I am unable to assent to the proposition that a man carrying
bolts to be used by him in repairing a railroad bridge was employed
in interstate commerce.
Transportation has been defined as commerce, and those engaged
in transportation are employed in commerce. But, in building the
bridge originally, the carrier was not "engaging in commerce
between the states," and the plaintiff, in subsequently repairing
it, was not
Page 229 U. S. 154
employed in such commerce. Such work was not a part of commerce,
but an incident which preceded it.
The act provides that
"every common carrier by railroad, while engaging in commerce
between any of the several states or territories . . . , shall be
liable in damages to any person suffering injury while he is
employed by such carrier in such commerce."
The defendant, though engaged in both interstate and intrastate
commerce, was also engaged in many other incidental activities
which were not commerce in any sense.
The railroad had to be surveyed and built, bridges had to be
constructed and renewed, cars had to be manufactured and repaired,
warehouses had to be built and painted, wages had to be paid and
books kept; but these transactions, though incident to it, were not
transportation, and therefore not within the purview of the statute
limited to persons employed in commerce. Otherwise the law would
embrace "all of the activities in any way connected with trade
between the states, and exclude state control over matters purely
domestic in their nature."
Hooper v. California,
155 U. S. 655.
Acts burdening interstate commerce can, of course, be prohibited by
Congress. But when Congress itself limits the operation of the
statute to persons injured while employed in interstate commerce,
the statute does not extend to its incidents, and is confined to
transportation. It does not include manufacturing, building,
repairing, for they are not commerce, whether performed by a
private person, a railroad, or its agents.
It is conceded that a line must be drawn between those employees
of the carrier who are employed in commerce and those engaged in
other departments of its business. It must be drawn so as to take
in, on one side, those engaged in transportation, which is
commerce; otherwise there is no logical reason why it should not
include every
Page 229 U. S. 155
agent of the company; for there is no other test by which to
determine when he must sue under the state statute and when under
the Act of Congress, for if a man on his way to repair a bridge is
engaged in interstate commerce, then the man in the shop who made
the bolts to be used in repairing the bridge is likewise so
engaged. If they are, then the man who paid them their wages and
the bookkeeper who entered those payments in the accounts are
similarly engaged. For they are all employed by the carrier, and
the work of each contributes to its success in hauling freight and
passengers.
This view is supported by the two cognate statutes. The hours of
service law applies only to those "engaged in the movement of
trains," and the safety appliance law refers not to machines in the
shop, but to cars and locomotives, which are the immediate
instruments of transportation. The Employers' Liability Act in like
manner applies to those engaged in transportation, and not to those
employed in building, manufacturing, or repairing.
The plaintiff was carrying bolts to be used in repairing a
bridge. That was not interstate commerce, and in my opinion the
court below properly held that his rights were to be determined by
the laws of the State of New Jersey, and not by the Act of
Congress.
MR. JUSTICE HOLMES and MR. JUSTICE LURTON concur in this
dissent.