Louisville & NR Co. v. Brittain

• Decision Date: 08 December 1937
• Docket Number: No. 8589.,8589.
• Citation: 93 F.2d 159
• Parties: LOUISVILLE & N. R. CO. v. BRITTAIN.
• Court: U.S. Court of Appeals — Fifth Circuit

93 F.2d 159 (1937)

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

No. 8589.

Circuit Court of Appeals, Fifth Circuit.

December 8, 1937.

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 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. 97; Klochyn v. New York C. R. Co., 218 App.Div. 295, 218 N.Y.S. 207; Allen v. St. Louis-S. F. R. Co., 331 Mo. 461, 53 S.W.2d 884; Chesapeake & Ohio R. Co. v. Rucker, 246 Ky. 161, 54 S.W.2d 642; Montgomery v. Terminal R. Ass'n of St. Louis, 335 Mo. 348, 73 S.W.2d 236; Boles v. Hines (Mo.App.) 226 S.W. 272. Cf. Southern Pacific Co. v. Middleton (C.C.A.) 54 F.2d 833; Middleton v. Southern Pacific Co. (C.C.A.) 61 F. 2d 929.

Appellee, urging that the act should be liberally construed, insists that the case is controlled by Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas.1914C, 153, an injury sustained by a repairman while working on or about a railroad bridge; Baltimore & O. S. W. R. Co. v. Burtch, 263 U.S. 540, 44 S.Ct. 165, 68 L.Ed. 433, freight being unloaded to a platform; Jonas v. Missouri Pacific R. Co. (Mo.App.) 48 S.W.2d 123, unloading ties from a car placed on an industrial switch; Louisville & N. R. Co. v. Stewart's Adm'r, 207 Ky. 516, 269 S.W. 555, a workman painting an elevator shaft for elevating coal to a chute; Sheehan v. Terminal Railway Ass'n, 336 Mo. 709, 81 S.W.2d 305, 307, a workman on a freight and baggage elevator in a railroad station; New York Central R. Co. v. Porter, 249 U.S. 168, 39 S.Ct. 188, 63 L.Ed. 536, a section hand shoveling snow upon railroad premises between the main track and a platform; Van Dusen v. Dept. of Labor and Industries, 158 Wash. 414, 290 P. 803, a workman repairing an ice machine in a railroad building; Dowell v. Wabash Ry. Co. (Mo.App.) 190 S.W. 939, one repairing a track leading to scales on which interstate freight is weighed.

Both appellant and appellee are agreed on the principle which controls the case; both admit the binding force of that principle. Each insists that if applied here, the result will be in his favor.

It may not be gainsaid that the pattern the decisions have pricked out is not of a wholly uniform design. In the attempt to apply the principle to varying facts some of the cases have at times pointed in directions which, if followed, would lead to results quite different from those indicated by the current of decision as it is now running. Some difficulties have been encountered in the attempt to apply the principle to employees working in the transportation departments where there was a close...