Baltimore & O.R. Co. v. Kast

• Decision Date: 06 June 1924
• Docket Number: 3991.
• Citation: 299 F. 419
• Parties: BALTIMORE & O.R. CO. v. KAST.
• Court: U.S. Court of Appeals — Sixth Circuit

299 F. 419

BALTIMORE & O.R. CO. v. KAST.

No. 3991.

United States Court of Appeals, Sixth Circuit.

June 6, 1924

J. P Wood and W. T. Kinder, both of Cleveland, Ohio (Tolles Hogsett, Ginn & Morley, of Cleveland, Ohio, on the brief) for plaintiff in error.

Louis H. Winch, of Cleveland, Ohio (Payer, Winch, Minshall & Karch of Cleveland, Ohio, on the brief), for defendant in error.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

MACK Circuit Judge.

Writ of error from a judgment of $17,500, based upon a verdict for $25,000, from which, as a condition to denying the motion for a new trial, Judge Westenhaver required a remittitur of $7,500. The facts bearing upon the question of liability are not in dispute, and are summarized by the judge, in the opinion filed by him on the motion for a new trial, as follows:

'Plaintiff was employed as a machinist helper at the roundhouse and shops of defendant at Garrett, Ind. This machinist and plaintiff were making what are called road or running repairs to a passenger engine. This engine had brought to Garrett an interstate passenger train, and was then detached and the train sent forward with another engine. This engine was bulletined to go out some 10 hours later, hauling another through interstate passenger train. It was usually and normally engaged in this passenger service, both before and after the accident. Defendant's superintendent noted on the bulletin board certain light running repairs required to be made to the engine, with instructions that they be made to prepare the engine for a contemplated interstate trip. A machinist, with plaintiff as his helper, was assigned to make these repairs. In so doing, the machinist needed a section of iron pipe, and instructed plaintiff to get it. Plaintiff started to another part of the defendant's premises, where such pipe could usually be found, and while on this errand, the supper or lunch gong sounded. According to his testimony, he was still in pursuit of the pipe at the time he was injured. According to another view of the testimony, he had suspended his errand and was going from the roundhouse across an open space of defendant's premises to another building, where its employes kept their lunch baskets and ate their lunches. In crossing an open areaway between the roundhouse and another building customarily used by employes, he stepped upon a socket wrench, fell, and was injured.

'He was passing over a part of defendant's premises ordinarily used by employes for that purpose. While it was not a paved or clearly defined path, the travel over it had beaten the cinders with which the ground was covered, to the form and appearance of a traveled roadway. Beside this way were tanks, which at times emitted steam. As plaintiff, in company with another employe, was passing these tanks, a heavy volume of steam suddenly escaped, completely obstructing their sight in all directions. Plaintiff's companion, in trying to get through and out of this steam, bumped into an upright post, and plaintiff stepped upon a socket wrench lying in the traveled way, and sustained his injuries.' 1. Were the parties engaged in interstate commerce at the time the plaintiff sustained his injuries? We agree entirely with the views expressed by the trial judge on this point in the opinion on the motion for a new trial, as follows:

'The court charged as a matter of law that the parties were engaged in interstate commerce. Defendant's further request was to go to the jury on the issue of interstate commerce, on the theory that plaintiff, when injured, had discontinued his work and was bound for lunch. There is nothing in this separate objection. If the engine repair work was interstate commerce, plaintiff was so engaged, notwithstanding he had quit work and was going to lunch (on the premises), with the expectation of immediately returning to the same work. North Carolina R.R. Co. v. Zachary, 232 U.S. 248, 34 Sup.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159; M., K. & T.R.R. Co. v. United States, 231 U.S. 112, 34 Sup.Ct. 26, 58 L.Ed. 144. Whether the machinist and his helper, thus engaged in making repairs during the lay-over period of an engine between two interstate trips, are engaged in interstate commerce, has not, so far as appears, been as yet decided by the United States Supreme Court, nor by any Circuit Court of Appeals. This question must be answered upon a consideration of the principles of law stated and applied in analogous situations. The test is whether or not the work, which the employe was doing when injured, was a part of interstate transportation or so closely related to it as to be practically a part of it. If it is, he is engaged in interstate commerce, otherwise not.'

After discussing the facts in Walsh v. N.Y., N.H. & H.R.R. Co., 223 U.S. 5, 32 Sup.Ct. 169, 56 L.Ed. 327, 38 L.R.A.(N.S.) 44; Pederson v. D.L. & W.R.R. Co., 229 U.S. 146, 33 Sup.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153; Roush v. B. & O.R.R. Co. (D.C.) 243 F. 712; North Carolina R.R. Co. v. Zachary, supra; Louisville & N.R. Co. v. Parker, 242 U.S. 13, 37 Sup.Ct. 4, 61 L.Ed. 119; New York Central R.R. co. v. Winfield, 244 U.S. 147, 37 Sup.Ct. 546, 61 L.Ed. 1045, L.R.A. 1913C, 439, Ann. Cas. 1917D, 1139; New York Central R.R. Co. v. Porter, 249 U.S. 168, 39 Sup.Ct. 188, 63 L.Ed. 536; Phila., Baltimore & Washington Ry. Co. v. Smith, 250 U.S. 101, 39 Sup.Ct. 396, 63 L.Ed. 869, holding an employe to be engaged in interstate commerce; Illinois Central R.R. Co. v. Behrens, 233 U.S. 473, 34 Sup.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163; C.B. & Q. Ry. Co. v. Harrington, 241 U.S. 177, 36 Sup.Ct. 517, 60 L.Ed. 941; Minneapolis & St. Louis R.R. Co. v. Winters, 242 U.S. 353, 37 Sup.Ct. 170, 61 L.Ed. 358, Ann. Cas. 1918B, 54; Chicago, etc., Ry. Co. v. Kindlesparker, 246 U.S. 657, 38 Sup.Ct. 425, 62 L.Ed. 925, reversing 234 Fed. 1 (6 C.C.A.), and Industrial Accident Commission v. Davis, 259 U.S. 182, 42 Sup.Ct. 489, 66 L.Ed. 888, holding him not so engaged--the trial judge continued:

'In the instant case, the engine was placed in a roundhouse, and not sent to repair or construction shops. The engine was not really withdrawn from interstate commerce in order to make the repairs in question. It had merely completed its usual interstate trip and was making its usual lay-over before beginning its next trip, which it was then known would be in interstate commerce. During this usual lay-over, the employes were engaged in making the usual running repairs, such as can be made upon a side track, or in a roundhouse, and such as are usually made during a lay-over. The work in question was the legal equivalent of inspecting, oiling, firing, and preparing an engine, and getting it ready for an intended interstate trip, as in the Zachary Case, or the replacement of a broken drawbar, so that the car could resume its interstate journey, as in the Walsh Case. While these running repairs were being made, there was not merely an expectation that

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