Rice v. Baltimore & OR Co.

• Decision Date: 02 July 1930
• Docket Number: No. 5265.,5265.
• Citation: 42 F.2d 387
• Parties: RICE v. BALTIMORE & O. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

42 F.2d 387 (1930)

RICE v. BALTIMORE & O. R. CO.

No. 5265.

Circuit Court of Appeals, Sixth Circuit.

July 2, 1930.

D. P. Bowden, of Cleveland, Ohio, for appellant.

U. C. DeFord, of Youngstown, Ohio (Harrington, DeFord, Huxley & Smith, of Youngstown, Ohio, on the brief), for appellee.

Before DENISON and HICKENLOOPER, Circuit Judges, and KILLITS, District Judge.

KILLITS, District Judge.

Rice, a fireman for the defendant railroad company, was actionably injured while in the company's service in West Virginia. Plaintiff was a citizen and resident of West Virginia, and the defendant company was a Maryland corporation, and, consequently, an "inhabitant" of Maryland for general jurisdictional purposes; USCA, title 28, § 112, Annotations, page 50. Jurisdiction was invoked in the Northern District of Ohio, where defendant does business, on the allegation that the train movement involved was in interstate commerce. It was alleged that plaintiff was injured as the result of a defect in a coupling buffer between the engine and tender which broke under a special strain. The answer admits defendant's corporate organization and operations as alleged in the petition, and, generally, that plaintiff was injured in its service, but specially denies that when so injured plaintiff was engaged in interstate commerce, and generally denies every other allegation. At the conclusion of the plaintiff's testimony, a verdict was directed for defendant on the court's judgment that an interstate movement was not disclosed by the testimony.

The crew of which Rice was a member was charged with a general task to place cars on the sidings of coal mines between the terminals of its movement, about thirteen miles apart — Clarksburg and Haywood, W. Va. It had no duties distinguishing it from an ordinary yard switching crew. The starting point was Clarksburg. The immediate task when Rice was injured was to collect empties on the Haywood and Lumberport storage tracks, these points being on opposite sides of a river, each on a main line track of defendant company connected by a so-called switching "cut-off" crossing the river. The only movement pleaded, as an interstate operation, was the alleged backing of the engine and several cars onto a storage track nearest to the cut-off track, and on the Haywood side, in order that this part of the switching train might clear the Haywood main track for an interstate train. About ten minutes before this train was due the accident occurred. The greater part of the record, however, was devoted to an attempt to show that the general operation of this switching crew on that occasion was to collect coal cars ordered by several of the mines to be used for interstate service, but not then specifically selected or designated for any particular siding or prospective use.

One mine, the Dawson, had indeed ordered delivery of thirty-six cars which were thereafter loaded and consigned for interstate shipment, but the evidence most clearly shows that none of such cars were in the Lumberport-Haywood movement, that they had been placed at the Dawson mine some hours before the accident. What there is in the testimony to throw any doubt on the certainty of this conclusion of fact is so vague and inconclusive as to be negligible for any purpose. Davlin v. Henry Ford & Son, Inc., (C. C. A.) 20 F.(2d) 317. It is also shown that at about 10 o'clock, or about four hours after Rice's injury and on the return trip of Rice's crew, seven empties were delivered to the Corona mine, which were loaded in the afternoon and thereafter weighed and billed and consigned for interstate shipment. The evidence that any one of these Corona cars was in the cut at the time of the accident is so scant as to make such a conclusion very speculative; Davlin v. Ford, supra. The fact question upon which there is even a conflict in testimony, being the existence of jurisdiction, should affirmatively and distinctly appear, Robertson v. Cease, 97 U. S. 646, 649, 24 L. Ed. 1057; and in this record a somewhat definite implication is carried that no Corona car was in the cut. But, assuming the contrary to be true, still, we think, it cannot be said that that fact gave the movement an interstate character.

The crew had orders, simply, to collect empties for the various mines served on this run. No particular car was spotted or selected for any special siding or ultimate destination, nor does it appear that the defendant knew, in any instance, the purpose for which the several mines were ordering cars. The trial court properly held, in effect, that, respecting this precise condition, interstate character of the movement on the cut-off and in the Haywood yards had not developed when the injury to plaintiff was sustained. Applying not only to the Corona cars but to those delivered to Dawson, we consider that a car should not be held to have entered into interstate commerce when still a part of a purely local switching haul, and not specifically "spotted" for the ultimate use, if, in fact, the prospective shipper does intend, following the switching, to load and bill for interstate shipment whatever car he may happen to receive; that interstate character attaches (at the earliest) to such car only after it is delivered by the carrier and appropriated by the shipper for interstate loading and hauling. Grigsby v. Southern Ry. (C. C. A.) 3 F.(2d) 988; Baldassarre v. Pennsylvania R. Co. (C. C. A.) 24 F.(2d) 201.

The immediate operation was to collect cars on the cut-off with the engine facing toward Haywood. So many had been gathered that it was necessary to move the engine and a few adjacent cars off of the cut-off onto a siding, by way of the main track at Haywood, in order to clear for the interstate train. Rice says that in this particular movement he was injured. On this point he is contradicted by the only other witnesses (two) who testified on the subject of the precise causal operation. These witnesses, the conductor and the brakeman, were called by plaintiff, and, if they are to be believed against him, the causal movement was not in interstate commerce. Applying, however, the familiar rule that the pertinent testimony should be considered most favorably to the party against whom the motion to direct is made, there arises the perplexing and frequently recurring question where the line should be drawn beyond which may not be invoked the Federal Employers' Liability Act (45 USCA §§ 51-59) to support jurisdiction which would not otherwise exist in the chosen trial court.

In Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146, 150, 152, 33 S. Ct. 648, 649, 57 L. Ed. 1125, it is said:

"* * * 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. * * *

"The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?"

In Shanks v. Del., Lack. & West. R. R., 239 U. S. 556, 558, 36 S. Ct. 188, 189, 60 L. Ed. 436, L. R. A. 1916C, 797, the test question is formulated as follows: "* * * the true test of employment in such commerce in the sense intended 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?"

The cases cited exhibit typical applications of the rule in sustaining and denying liability under the act. In the first case Pedersen was a member of a crew engaged in replacing an existing girder and inserting a new one in a bridge on the track used in interstate and intrastate commerce, and was injured while carrying to the place of work materials to be used therein. It was held that this work was so closely and directly connected with interstate commerce within the meaning of the act as to give a right of recovery thereunder. Shanks, in the second case, was employed in the repair shop of a railroad extensively engaged in interstate as well as intrastate commerce. He was injured in changing the location of a head countershaft which conveyed power to machinery used in repair work for rolling stock, indifferently employed in both classes of commerce. This line of employment was held to be so remotely and incidentally connected with interstate commerce as not to establish a right of action under the act for an injury therein received.

In the opinion in Hallstein v. Pennsylvania Railroad Co., 30 F.(2d) 594 (C. C. A. 6), is collated a large number of cases which stand on either side of the line dividing the principal cases cited above. To these given in that opinion may be added cases recently decided by this court, namely, Pennsylvania Railroad Co. v. Morrison, 3 F.(2d) 986; Baltimore & Ohio Railroad Co. v. Darling, 3 F.(2d) 987; Youngstown & O. R. R. v. Halverstodt, 12 F.(2d) 995; Sullivan v. Wabash Railway Co., 23 F.(2d) 323, 324; Baldassarre v. Pennsylvania Railroad Co., supra; and Grigsby et al. v. Southern Railway Co., supra.

The principle derived from the authoritative decisions is that the act applies to a cause of action occurring to an employee (a) if then his general service is primarily and directly in the interest of interstate commerce, and it is seen that he was at the time engaged in a service necessarily precedent or consequent to or in the full execution of the primary object, or (b) that the injury was incurred during such a deflection from the direct line of execution thereof, that it should be regarded as but incidental or contingent thereto and reasonably necessary to its completion. To serve interstate commerce must be seen to have been, from the outset, a substantial purpose of the work in which the injured employee was then engaged.

This formula reflects the principle of every important decision in which the considered incident is found within the act or otherwise. When one or more of its necessary...