Louisville & NR Co. v. Brittain, No. 8589.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: SIBLEY, HUTCHESON, and HOLMES, Circuit
• Citation: 93 F.2d 159
• Parties: LOUISVILLE & N. R. CO. v. BRITTAIN.
• Docket Number: No. 8589.
• Decision Date: 08 December 1937

93 F.2d 159 (1937)

LOUISVILLE & N. R. CO.
v.
BRITTAIN.*

No. 8589.

Circuit Court of Appeals, Fifth Circuit.

December 8, 1937.

93 F.2d 160

Chas. H. Eyster, of Decatur, Ala., and White E. Gibson, of Birmingham, Ala., for appellant.

Horace C. Alford and G. R. Harsh, Jr., both of Birmingham, Ala., for appellee.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit, under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59), was for damages for personal injuries. The claim was that defendant was a common carrier engaged in interstate commerce; that plaintiff was an employee of defendant in the Bridges and Buildings Department; and that when injured by defendant's negligence, he was engaged in interstate transportation, or in work so close to it as to be practically a part of it, to wit, transporting timbers to repair the platform of a nonagency station. The defenses under the general issue pleaded in short by consent were: (1) That the facts of the injury did not make out a case under the act; (2) that the defendant was not negligent; and (3) that plaintiff was. The evidence in, defendant moved for a verdict, and the motion overruled, excepted. It excepted too, to what, under the undisputed facts, was in effect a peremptory instruction that plaintiff's case was under the act.¹ This appeal from the judgment on a jury verdict for plaintiff tests whether the overruling of defendant's motion was error.

The sole point urged is that, as matter of law, what plaintiff was admittedly engaged in doing, to wit, hauling timbers to replace unsound sills, and to close in the space under the platform of the nonagency station at Blount Springs, was not transportation, nor was it work so close to it as to be practically a part of it.

Appellant makes much of the fact that the station at Blount Springs is a nonagency one, Yazoo & Mississippi Valley Ry. Co. v. Nichols & Co., 256 U.S. 540, 41 S.Ct. 549, 65 L.Ed. 1081; Columbia Motors Co. v. Ada County, 42 Idaho 678, 247 P. 786, 48 A.L.R. 950; that is, that there was not, and for six years past there had not been, either a ticket or a freight agent there, but only a caretaker who lived in the depot, and sent notices of freight received and warehoused there. It insists that though some interstate freight comes on occasions to Blount Springs, and by the use of skids and trucks is run onto and over the platform and into the depot, and there warehoused until the merchants come for it, these occasions are infrequent and irregular. It insists, too, that the nonagency question aside, plaintiff having nothing whatever to do with the unloading or delivery of such freight, was not engaged in transportation, or in work so close to it as to be practically a part of it. For he was in the repair, rather than in the transportation department of the

93 F.2d 161

railroad, and the work he was immediately engaged in doing was in connection with the repair of a building, and such work, under all the authorities, is not within the act. It cites in support New York, N. H. & H. Ry. Co. v. Bezue, 284 U.S. 415, 52 S.Ct. 205, 76 L.Ed. 370, 77 A.L.R. 1370; Chicago & E. I. Ry. Co. v. Industrial Comm., 284 U.S. 296, 52 S.Ct. 151, 76 L.Ed. 304, 77 A.L.R. 1367; Chicago & N. W. Ry. Co. v. Bolle, 284 U.S. 74, 52 S.Ct. 59, 76 L.Ed. 173; Chicago, B. & Q. R. Co. v. Harrington, 241 U.S. 177, 36 S.Ct. 517, 60 L.Ed. 941; Shanks v. Delaware, L. & W. R. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A.1916C, 797; Poff v. Washington Terminal Co., 63 App.D.C. 86, 69 F.2d 572; Pennsylvania R. Co. v. Manning (C.C.A.) 62 F.2d 293; Minneapolis & St. L. R. Co. v. Nash, 242 U.S. 619, 620, 37 S.Ct. 239, 61 L.Ed. 531; Kansas City So. R. Co. v. Quin (C.C.A.) 85 F.2d 485; Castonguay v. Grand Trunk R. Co., 91 Vt. 371, 100 A. 908; Boyer v. Pennsylvania R. Co., 162 Md. 328, 159 A. 909; Gasser v. Central R. Co. of N. J., 112 Pa.Super. 420, 171 A....