Bamberger Electric R. Co. v. Winslow

• Decision Date: 02 December 1930
• Docket Number: No. 263.,263.
• Citation: 45 F.2d 499
• Parties: BAMBERGER ELECTRIC R. CO. v. WINSLOW.
• Court: U.S. Court of Appeals — Tenth Circuit

45 F.2d 499 (1930)

BAMBERGER ELECTRIC R. CO. v. WINSLOW.

No. 263.

Circuit Court of Appeals, Tenth Circuit.

December 2, 1930.

A. B. Irvine, of Salt Lake City, Utah (D. A. Skeen and Sam D. Thurman, both of Salt Lake City, Utah, on the brief), for appellant.

Willard Hanson, of Salt Lake City, Utah (A. H. Hougaard, of Salt Lake City, Utah, on the brief), for appellee.

Before PHILLIPS and McDERMOTT, Circuit Judges, and POLLOCK, District Judge.

PHILLIPS, Circuit Judge.

Winslow brought this action against the Bamberger Electric Railroad Company under the Federal Employers' Liability Act (45 USCA § 51 et seq.), to recover damages for personal injuries.

The railroad company owns and operates a line of railroad extending from Salt Lake City, to Ogden, Utah. It owns a transfer track at Ogden which connects its line with the line of the Union Pacific Railroad Company, and it is engaged in both interstate and intrastate business by means of this connection with the Union Pacific.

The railroad company was engaged in constructing a new transfer track parallel with and adjacent to its old transfer track. In carrying on this new construction, it transported gravel by means of gravel cars to the old transfer track. This gravel was dumped from the sides of such cars next to the new construction and carried to the new grade by means of teams and scrapers. After one side had been dumped, the gravel cars were transported to a wye, reversed and taken back to the old transfer track where the other side was dumped and the gravel in like manner carried to the new construction. Winslow was a member of the section crew. It was the duty of the section crew to remove, with shovels, the gravel that fell between the rails of the old transfer track and to keep such track clear of gravel, so that engines and cars could safely move over and along it. On April 28, 1929, one of such gravel cars became derailed, while on the transfer track. Winslow was engaged, along with other employés, in rerailing such gravel car when he suffered the injuries for which he seeks damages. At the time of the injury, two interstate cars were waiting to be moved over the transfer track.

At the conclusion of the evidence before the trial court, the railroad company moved for a directed verdict upon the ground that Winslow was not engaged in interstate commerce at the time of the injury. The trial court overruled this motion, and the verdict and judgment went in favor of Winslow.

The railroad company has appealed. The sole question presented is whether Winslow was engaged in interstate commerce, at the time of the injury.

In Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146, at page 150, 33 S. Ct. 648, 649, 57 L. Ed. 1125, the court said:

"Considering the terms of the statute, there can be no doubt that a right of recovery thereunder arises only where the injury is suffered while the carrier is engaged in interstate commerce, and while the employee is employed by the carrier in such commerce."

In Shanks v. Del., Lack. & West. R. R., 239 U. S. 556, at page 558, 36 S. Ct. 188, 189, 60 L. Ed. 436, L. R. A. 1916C, 797, the court said:

"* * * The true test of employment in such commerce in the sense intended is, Was the employee at the time of the injury, engaged in interstate transportation, or in work, so closely related to it as to be practically a part of it?"

In Erie R. R. Co. v. Welsh, 242 U. S. 303, at page 306, 37 S. Ct. 116, 118, 61 L. Ed. 319, the court said:

"The true test is the nature of the work being done at the time of the injury."

See also Illinois Cent. R. R. Co. v. Behrens, 233 U. S. 473, 478, 34 S. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163.

Where an employé is engaged in work upon or directly in connection with an instrumentality which is being used in interstate commerce, such employé is employed in interstate commerce. On the other hand, where the instrumentality, upon which the employé is at work or in connection with which he is employed, has not yet been dedicated to use in interstate commerce, although it may be intended for use ultimately in such commerce, such work ordinarily is not so closely related to interstate commerce as to be practically a part of it. See Hallstein v. Penna. R. R. Co. (C. C. A. 6) 30 F.(2d) 594, 595, and cases there collated; and Erie R. R. Co. v. Collins, 253 U. S. 77, 83, 85, 40 S. Ct. 450, 64 L. Ed. 790.

Counsel for the railroad company contend that Winslow was employed in the construction of the new transfer track; that such instrumentality, although ultimately intended for use in interstate commerce, had not yet been dedicated to such commerce, and that the case falls within the latter rule.

On the other hand, counsel for Winslow contend that the old transfer track was an instrumentality being used in interstate commerce and that Winslow, both generally and at the time of the accident, was engaged in keeping that instrumentality clear for use in interstate commerce, and that therefore he was engaged in such commerce when injured.

It has been held that where an interstate track has been blocked by wreckage and interstate transportation thereby interrupted and the work of the employé, at the time of his injury, directly contributes to the clearing of such track...