Kelley v. Norfolk & W. Ry. Co.

• Decision Date: 10 June 1927
• Docket Number: No. 4769.,4769.
• Parties: KELLEY v. NORFOLK & W. RY. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

19 F.2d 808 (1927)

KELLEY v. NORFOLK & W. RY. CO.

No. 4769.

Circuit Court of Appeals, Sixth Circuit.

June 10, 1927.

D. F. Anderson, of Youngstown, Ohio (Anderson, Lamb & Marsteller, of Youngstown, Ohio, on the brief), for plaintiff in error.

James I. Boulger, of Columbus, Ohio (Henry Bannon, of Portsmouth, Ohio, on the brief), for defendant in error.

Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.

MOORMAN, Circuit Judge.

The jurisdictional question here depends on the applicability of the federal Employers' Liability Act (Comp. St. §§ 8657-8665), and that in turn upon whether plaintiff and defendant were each engaged in interstate commerce at the time the plaintiff received the injuries for which he sued. The lower court held that the plaintiff was not so engaged, and directed a nonsuit upon that ground. Briefly stated, the facts are:

Defendant was engaged in constructing tracks for a new yard, one of which known as the "industrial lead track," about three-quarters of a mile in length, led from its main interstate track to the new yard under construction. No freight had been received or delivered upon the new tracks. The state line of Virginia and West Virginia crossed the industrial lead track a few feet east of its juncture with the main line. Shortly before the injury, the crew to which plaintiff belonged had crossed the state line to the lead track with an engine and caboose. Another crew had left on one of the storage tracks, diverging from the lead, some cars of cinders, which had also been brought across the state line. After unloading these cinders on the new tracks, plaintiff's crew was ordered by the conductor in charge to take the empty cars, from which the cinders had been dumped, into the yard in Virginia, and then to couple to some cars loaded with rails, tiles, or other material, and place them along the main line. While moving the cars along the lead track in obedience to this order, but while in the state of West Virginia, plaintiff received the injuries of which he complains.

The position of defendant is that the particular enterprise of constructing the new tracks was not interstate commerce, and that as plaintiff was engaged, at the time of his injury, in operating a train on one of those tracks, and had not been engaged in any activity during the day save that of carrying cars and materials to and from those tracks, he likewise was not engaged in such commerce. With this conclusion we cannot agree. The proof shows that the cars which plaintiff's crew was moving at the time of his injury had been brought across the state line to be unloaded and to be returned to the state of Virginia. The movement which resulted in his injury had as its destination Virginia, which would have been reached almost immediately, except for the interruption caused by the injury. The case, therefore, is one where the injured employee was engaged in the transportation of empty cars from one state to another. His status is not different in any essential respect from what it would have been, had he been engaged in bringing the cars loaded with ballast for the new tracks from Virginia into West Virginia.

In that case we cannot doubt that his status would be determined, not by the character of work being done in the new yard, but by the character of the transportation in which he was engaged, that of moving freight for his employer from one state to another, as definitely interstate commerce in its nature as the transportation of freight for the public between states. The fact that the...