Birmingham Belt R. Co. v. Ellenburg

• Decision Date: 30 October 1924
• Docket Number: 6 Div. 118
• Citation: Birmingham Belt R. Co. v. Ellenburg, 213 Ala. 146, 104 So. 269 (Ala. 1924)
• Parties: BIRMINGHAM BELT R. CO. v. ELLENBURG.
• Court: Alabama Supreme Court

104 So. 269

213 Ala. 146

BIRMINGHAM BELT R. CO. v. ELLENBURG.

6 Div. 118

Supreme Court of Alabama

October 30, 1924

Rehearing Denied May 14, 1925

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for personal injuries by John W. Ellenburg against the Birmingham Belt Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Gardner Thomas, and Bouldin, JJ., dissenting.

Cabaniss Johnston, Cocke & Cabaniss and Sumner E. Thomas, all of Birmingham, for appellant.

Black &amp Harris, of Birmingham, for appellee.

SAYRE J.

This action is brought under the federal Employers' Liability Act (35 Stat. 65 [U.S.Comp.St. §§ 8657-8665]), to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of a coemployé while both were in the service of defendant. The first defense is that at the time of the accident plaintiff was not engaged in interstate commerce within the purview of the act. The substantial facts relevant to the contention thus raised are without dispute and may be stated as follows: Defendant operates a local road which transfers cars, carrying interstate and intrastate commerce, between the trunk lines entering Birmingham. Plaintiff was foreman of a switching crew which prior to the accident had been switching freight cars about the railroad yard in East Birmingham. They had been switching cars which were due to move, and were then moving, it may be conceded in both interstate and intrastate traffic. About 8 o'clock in the morning plaintiff's engine became disabled and plaintiff, with his crew, took it for repairs to the shop or roundhouse more than a mile distant from the yard. Plaintiff was engaged in making up a train on the west main line track of the Seaboard Air Line when his engine became disabled, and, when he took it away, left the said main line track blocked by the train, or part of a train, which had been placed there, including, it may be stated by way of further amplification, several cars loaded with grain moving in interstate commerce. Upon completion of the repairs, plaintiff and his crew started back with the engine to the yard to resume operations where they had been left off. With two helpers, plaintiff was standing on the footboard across the front of the engine. As the engine approached Thirtieth street, still some distance from the yard, a collision with an automobile on the street appeared imminent, though no collision occurred, and, in the effort to escape the danger thus threatened, plaintiff fell under the engine, where he lost a leg. This happened at 9:15, something more than an hour after the engine became disabled.

The act provides that "every common carrier by railroad while engaged in commerce" between the states, etc., "shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce," if the injury results in whole or part from the negligence of the carrier or of any of its officers, agent, or employés. A host of cases followed in which the courts have undertaken to deal with the question, of much difficulty in border line cases: Just when are a carrier and its employé engaged in interstate commerce? The first test formula suggested was in this language:

"Is the work in question a part of the interstate commerce in which the carrier is engaged?" Pedersen v. D., L. & W.R.R., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas.1914C, 153.

The formula of the federal courts now is:

"Was the employé 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?" Shanks v. D., L. & W.R.R., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A.1916C, 797.

Still the answer is one of difficulty, as numerous cases have shown, and to that category, perhaps, in view of federal decisions, the present case may be assigned. Our effort has been to follow the decisions of the Supreme Court of the United States as we understand them.

Defendant does customarily handle cars which are laden or in use in both interstate and intrastate transportation of freight, but its track is wholly within this state. Its engine at the time was drawing neither loaded nor empty cars, so we think it safe to say that it was not engaged immediately in interstate commerce, which is interstate transportation; and so with respect to plaintiff. But were they engaged in a work so closely related to interstate transportation as to be practically a part of it? The engine was being moved back to the yard, there again to engage in the work of shifting cars, making up trains or parts of trains to be transferred from one trunk line to another without regard to whether the freight with which they were laden was moving in interstate or intrastate commerce. In Illinois Central R.R. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051, Ann.Cas.1914C, 163, at the time of the fatal injury counted upon, intestate was engaged in moving several cars, all loaded with intrastate freight, from one part of the city of New Orleans to another. The court entertained no doubt that the liability of the carrier in that case, operating its railroad as a highway for both interstate and intrastate commerce indiscriminately, for injuries suffered by a member of the crew in the course of its general work, was subject to regulation by Congress, whether the particular service being performed at the time of the injury, "isolatedly considered," was in interstate or intrastate commerce, citing cases. But the court, referring to the language of the statute and quoting Pedersen's Case to the effect that "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 employé is employed by the carrier in such commerce," held the moving of several cars, all loaded with intra state freight, from one part of the city to another, was not a service in interstate commerce, and so that the injury and resulting death were not within the statute. And the court, answering the argument made in that case and in substance, repeated here that--

"The mere fact that said switch engine was destined to Chalmette, where the switching engine and crew were to take up other cars, either loaded or empty, belonging to various railroad companies, and take them to a point in the same state, and there turn them over to the yardmaster, who was to deliver them to various railroad systems to be transported to points within and without the state, rendered the fatal trip of said engine a necessary step in the interstate traffic of the railroad company, and constituted the engine itself an instrument of said traffic."

Answering this argument, the court said:

"That he [deceased] was expected, upon the completion of that task, to engage in another which would have been a part of interstate commerce, is immaterial under the statute, for, by its terms, the true test is the nature of the work being done at the time of the injury."

The Supreme Court of the United States is the final arbiter of all questions arising under the act of Congress. The case to which we have referred is, for all practical purposes, on all fours with the case at bar, and, so far as we have been able to learn, its authority has not been impaired or questioned. It was cited with approval in C., B. & Q.R.R. v. Harrington, 241 U.S. 177, 36 S.Ct. 517, 60 L.Ed. 941, where substantially its language was repeated, and so in other cases.

In the Behrens Case the engine on which decedent employé was engaged was doing in general the same work as the engine on which plaintiff here was engaged. There, however, at the time of the injury, it was drawing cars loaded with intrastate freight exclusively. In this case the engine was drawing no cars. By quotation from a state case (O'Neill v. Sioux City Terminal, 193 Iowa, 41, 186 N.W. 633) it is suggested that the nature of the freight being hauled in the Behrens Case served definitely to dissociate the work of the engine and its crew from interstate commerce and thereby to distinguish that case from this. But, in order to bring a case under the influence of the federal act, the employé must have been engaged directly in interstate commerce, as, obviously, plaintiff was not, or at the time of his injury must have had some definite assignment to work so closely related to interstate transportation as, for purposes of decision, to be practically a part of it. As the matter appears to us, the case against the control of the federal statute is stronger here than it was in Illinois Central v. Behrens. In that case there was a temporary dissociation from interstate commerce. Here there was a temporary dissociation from commerce of any character. In the Behrens Case the engine was hauling cars loaded with intrastate freight, but had a definite assignment to bring back interstate cars. Here the engine was going back to its work of moving interstate and intrastate cars indiscriminately.

Minneapolis & St. Louis R.R. v. Winters, 242 U.S. 353, 37 S.Ct. 170, 61 L.Ed. 358, Ann.Cas.1918B, 54, also points to the conclusion we have indicated. In that case the plaintiff was injured while making repairs on an engine, which had been employed in interstate commerce on October 18, before the accident, and was again so employed on October 21, after the accident. The court said:

"This is not like the matter of repairs upon a road permanently devoted to commerce among the states. An engine as such is not permanently devoted to any kind of traffic and it does not appear that this engine was destined especially to anything more definite than such business as it might be needed for. It was not interrupted in

...