Baltimore & O. R. Co. v. Barr

Citation204 F. 751
Decision Date05 February 1913
Docket Number1,121.
PartiesBALTIMORE & O.R. CO. v. DARR.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

This was an action at law, instituted in the District Court of the United States for the District of Maryland, by George H Darr, as plaintiff, against the Baltimore & Ohio Railroad Company, a corporation incorporated under the laws of the state of Maryland. For convenience the plaintiff in error will be referred to as the defendant, and the defendant in error, as the plaintiff. The declaration was filed on the 22d day of March, 1912. The defendant pleaded on April 8, 1912, and on May 15, 1912, it demurred to the declaration, which demurrer the court overruled. On May 15, 1912, the case was tried before a judge and jury, and the jury rendered a verdict in favor of the plaintiff in the sum of $1,000, together with the costs of the action. The defendant made the usual motions, which were overruled, and the case was brought here on writ of error.

There was evidence tending to show that George H. Darr was, at the time of his injury, engaged as an employe and servant of the defendant company in the city of Cumberland, Md., as a running repairman and emergency man, whose duty it was to repair the engines and tenders of said company; that on the date of his injury, to wit, the 12th day of December, 1911 engine No. 4,119, of the defendant company, and its tender, brought in a loaded freight train from Brunswick, Md., to Cumberland, Md., crossed into the state of West Virginia, and again into the state of Maryland, before arriving at Cumberland; that said engine and cars arrived in Cumberland about 9 o'clock on the morning of December 12, 1911, and it was found, upon examination, that its tender was in need of immediate repair to the left front brake. A hanger bolt had fallen out of the brake beam on the tender. As a result the brake beam hung down in dangerous proximity to the rail and was likely to cause an accident. The plaintiff and one Stephen M. Thomas were directed to repair the same. The engine was removed to a track, called the 'fire track,' on which temporary repairs were made, and the plaintiff went to work to repair the brake shoe and hanger bolt. It further appears that while engaged in repairing it, and without any negligence whatever on his part, his fellow servant in charge of the engine, turned on the air and plaintiff was seriously injured.

The plaintiff testified that engine No. 4,119 was a second division engine, belonging to the Baltimore & Ohio Railroad Company, running out of Maryland, into West Virginia, to Brunswick, Md.; that it hauled freight over the second division, and that he first saw the engine about 9 o'clock on the morning he was injured; that it was then standing on the fire track; that he was running repairman and emergency man, employed by the defendant company at its roundhouse, in South Cumberland, Md.

A witness by the name of A. W. Dean, foreman in the employ of the defendant company, at the time the plaintiff was injured, testified that he knew engine No. 4,119, and that it was a through engine engaged in hauling freight; that it came from Brunswick, Md., on the morning the plaintiff was injured; that it brought a freight train in that morning; and that when it went out again it went either to Brunswick or Martinsburg, W.Va. Dean further testified that the defendant company was at all times on the day of the injury to the plaintiff, and ever since, engaged in the business of interstate and intrastate carrier of passengers and freight for hire; its freight and passenger trains traveling several times a day to and from Cumberland to Brunswick, Md., through the state of West Virginia.

A witness by the name of Stephen M. Thomas testified that he assisted the plaintiff in repairing said engine at the time of his injury; that the engine came into the yard at 9:15 on the morning the plaintiff was injured, and went out on its run at 2 o'clock on the same afternoon.

William Moreland, boss caller for the defendant company, at Cumberland, was also examined as a witness. He testified that he was in the employ of the Baltimore & Ohio Railroad Company in its shops in South Cumberland, and was thus engaged on the morning the plaintiff was injured, and further testified that he knew engine No. 4,119, and that it was engaged at that time in handling freight between Cumberland and Brunswick, Md., Martinsburg and Keyser, W. Va.; that it comes into Cumberland and goes out regularly with freight.

George A. Pearre, of Cumberland, Md., for plaintiff in error.

Walter C. Capper, of Cumberland, Md. (Finley C. Hendrickson, of Cumberland, Md., on the brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and WADDILL and McDOWELL, District judges.

PRITCHARD Circuit Judge (after stating the facts as above).

This action was instituted in pursuance of Act April 22, 1908, c. 149, Sec. 1, 35 Stat. 65 (U.S. Comp. St. Supp. 1911, p. 1322), which, among other things, provides:

'Every common carrier by railroad, while engaging in commerce between any of the several states, * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.'

It is clear that it was the purpose of this act that every common carrier by railroad engaged in commerce between any of the several states should be liable in damages to any person suffering injury while employed in interstate commerce by such carrier for injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employes of such company, as well as employes injured by reason of any defect or insufficiency in its engines, cars, bolts, etc.

Therefore the only questions that it becomes necessary for us to determine are as to whether, first, the defendant company as a carrier was engaged in interstate commerce and if the plaintiff below was at the time of the injury employed in such commerce; second, as to whether the injury the plaintiff sustained was due to the negligence of any of the officers, agents, or employes of such carrier, but there seems to be no controversy as to the second proposition. Therefore this leaves for our consideration the sole question as to whether, at the time of the injury, the engine in question was employed or engaged in interstate commerce.

The evidence offered in the court below was to the effect that this particular engine was used by a common carrier while engaged in interstate commerce. Manifestly it was the intention of Congress that this act should apply to a particular class of employes and to a particular class of carriers, to wit, those carriers that were engaged in interstate commerce and those employed by such carries for the purpose of aiding them in carrying on the business. The plaintiff belonged to this class of employes.

If this engine had been stopped en route, while attached to a loaded train, either in the state of Maryland or in the state of West Virginia, for making needed repairs, it could hardly have been insisted that during the time consumed in making such repairs the defendant company was not engaged as an interstate carrier. The engine was making its daily trips through Maryland and West Virginia, and while temporarily in the yards at Cumberland, Md., it became necessary to make certain repairs that were essential to the successful operation of the defendant company's trains. Therefore it necessarily follows that any work that was performed by the plaintiff was as much an incident of the business as if the accident had occurred while the train was on its regular trip either in Maryland or West Virginia. The learned judge who heard this case in the court below, among other things, made the following statement of facts:

'The
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