Davis v. Baltimore & OR Co.

• Decision Date: 05 January 1926
• Docket Number: No. 4364.,4364.
• Citation: 10 F.2d 140
• Parties: DAVIS v. BALTIMORE & O. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

10 F.2d 140 (1926)

DAVIS v. BALTIMORE & O. R. CO.

No. 4364.

Circuit Court of Appeals, Sixth Circuit.

January 5, 1926.

R. B. Newcomb, of Cleveland, Ohio (Newcomb, Newcomb & Nord, of Cleveland, Ohio, on the brief), for plaintiff in error.

Thomas O. Nevison, of Cleveland, Ohio (Tolles, Hogsett, Ginn & Morley, W. T. Kinder, and Thos. O. Nevison, all of Cleveland, Ohio, on the brief), for defendant in error.

Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges.

DONAHUE, Circuit Judge (after stating the facts as above).

It appears by the stipulation of counsel that this Western Maryland car, immediately before it had been brought to Keyser, W. Va., for repairs, had been engaged in intrastate commerce between Cumberland and Ancelle, Md.; that it was loaded at Cumberland, and after it reached Ancelle it was unloaded and sent to the Keyser yards for repair; that it reached there about January 1, 1924, and was repaired on January 2d; that on January 3d it was not under orders of consignment; and that the next movement of the car was to Cumberland, Md., to be used either in interstate or intrastate commerce as the business of the defendant would require, and that it was not in consignment on arrival at Keyser from Ancelle, Md.

This presents a wholly different situation from a case in which a car is permanently assigned or specially devoted to interstate commerce, and is taken out of a train for trifling repairs, with the intention or purpose of continuing it in interstate commerce as soon as the repairs are completed. Industrial Commission v. Davis, 259 U. S. 182, 42 S. Ct. 489, 66 L. Ed. 888. Whatever may have been its character or status while a part of an interstate train moving from Ancelle, Md., to Keyser, W. Va., not under consignment and taken to Keyser solely for the purpose of repairs, this movement and the contemplated return of the car, after it should be repaired, from Keyser, W. Va., to Cumberland, Md., would not impress upon it the character of a car permanently engaged in or specially devoted to interstate commerce while it remained upon the shop track at Keyser, W. Va. Minneapolis & St. Louis R. Co. v. Winters, 242 U. S. 353, 37 S. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54.

This car was not interrupted in an interstate haul to be repaired and continue its journey, nor was it actually employed in interstate commerce when taken out of service at Ancelle and sent to the Keyser shop track for repair. For this reason we do not think the...