Boyer v. Pa. R. Co., 48.

Decision Date08 April 1932
Docket NumberNo. 48.,48.
PartiesBOYER v. PENNSYLVANIA R. CO.
CourtMaryland Court of Appeals
159 A. 909

BOYER
v.
PENNSYLVANIA R. CO.

No. 48.

Court of Appeals of Maryland.

April 8, 1932.


159 A. 910

Appeal from Circuit Court, Cecil County; Wm. H. Adkins and Thomas J. Keating, Judges.

Action under the Federal Employers' Liability Act (45 USCA §§ 51-59) by Lewis Frank Boyer against the Pennsylvania Railroad Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Argued before BOND, C. J., and PATTISON, URNER, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

T. Alan Goldsborough, of Denton (W. Brewster Deen, of Denton, on the brief), for appellant.

W. Mason Shehan and G. Elbert Marshall, both of Easton, for appellee.

PARKE, J.

Lewis F. Boyer, an employee of the Pennsylvania Railroad Company, brought an action at law under the Federal Employers' Liability Act (USCA title 45, §§ 51-59) against his employer to recover damages for an injury sustained under circumstances which were alleged in an amended declaration. The nisi prius court sustained the demurrer to this declaration, and the appeal is from the judgment on the demurrer in favor of the employer.

The action was based upon the theory that the employer is a railway common carrier engaged in interstate commerce, and that the plaintiff, while employed as its servant in this service, was injured by the negligence of a coemployee. The allegations whose truth is admitted by the demurrer, but whose legal sufficiency to constitute a cause of action is denied, must show not only that the carrier was engaged in interstate commerce at the time of the accident, but also that the servant was then so engaged. Roberts on Federal Liabilities of Carriers (2d Ed.) § 725. It will accordingly be convenient to consider these two divisions of the question on appeal separately and in order.

1. The employer owns and operates an interstate railway whose terminal points are Oxford, Md., and Clayton, Del. The town of Greensboro, Md., is on the railway, and all the defendant's railway trains passing over its tracks through the town are engaged in interstate transportation. The carrier has had along its railway tracks at Greensboro a structure or water tank which for a period of fifty years it has maintained and used for the purpose of furnishing water for these interstate trains. "Various connected devices, including the auxiliary power generated by an engine built upon a platform, had been employed to force the water into the tank for delivery to the trains operated in interstate commerce; and in August, 1929, the carrier, in order to make certain operative changes without interruption of the supply of water to the interstate trains, enlarged the existing platform in order to erect thereon another engine which, when ready for use, would supersede the original engine in the production of additional power when necessary to force sufficient water into the tank to assure regularity in the supply of interstate trains with their requirements of water.

It will be noted that for a train to be drawn by a steam engine it is as indispensable to have water in the boiler as fire in the fire box of the engine, and that a water tank to maintain and furnish a continuous and adequate quantity of water for railway

159 A. 911

trains is a necessary equipment in interstate commerce by a railway carrier. There can, therefore, be no question that the use or maintenance of a water tank for the service of railway trains engaged in the transportation of interstate commerce is, so far as the railway carrier is concerned, an operation in interstate commerce, because, while carriage or transportation is an essential element of commerce between the state, neither can be accomplished without the use of things and the labor of man, which, while so employed, are the instruments and agents of commerce. Consequently, whenever, as in the case of the use or maintenance of a water tank erected for the service of interstate railway trains, employees are engaged in work which is so directly connected with interstate commerce as to be a part of it, they are within the purview of the Federal Employers' Liability Act. Roberts on Federal Liabilities of Carriers (2d Ed.) §§ 725-729, 760-766, 775-777; Erie R. Co. v. Collins, 253 U. S. 77, 40 S. Ct. 450, 64 L. Ed. 790; Erie R. Co. v. Szary, 253 U. S. 88, 40 S. Ct. 454, 64 L. Ed. 794, the last two cases having been reversed on another point, infra.

A distinction is to be observed where the employment is in the original construction of tracks, tunnels, bridges, structures, and equipment which have never been used as instrumentalities of interstate commerce, because such work is not an employment within the meaning of the statute. The mere fact that the thing when completed would be used in direct connection with the transportation of interstate commerce would not be sufficient, since the act contemplates only the liability of a carrier engaged in interstate commerce for injuries sustained by its employees while engaged in such commerce. Second Employers' Liability Case, 223 U. S. 1, 47, 48, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Pedersen v. Del., Lack. & West. R. Co., 229 U. S. 146, 152, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; New York Cent. R. Co. v. White, 243 U. S. 188, 37 S. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; Raymond v. Chicago, M. & St. P. R. Co., 243 U. S. 43, 37 S. Ct. 268, 61 L. Ed. 583; Minneapolis & St. L. R. Co. v. Winters, 242 U. S. 353, 37 S. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54; Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 558, 36 S. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797; Delaware L. & W. R. Co. v. Yurkonis, 238 U. S. 439, 35 S. Ct. 902, 59 L. Ed. 1397; Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 36 S. Ct. 517, 60 L. Ed. 941; Lehigh Valley R. Co. v. Barlow, 244 U. S. 183, 37 S. Ct. 515, 61 L. Ed. 1070.

The employer in the case at bar invokes this distinction between original construction work and the repair or maintenance of interstate railways, and the line of cleavage is not always easily discernible.

Whatever may be necessary to keep the subsisting railway, its structures and equipment, in a safe state for interstate traffic, or to maintain it in that state and improve the state, may be said to be an act of repair, which commonly embraces not only restoration but, also, renovation or renewal by any process of making good, strengthening, supplying, or mending. Century Dictionary, "Repair"; Inglis v. Buttery, L. R., 3 App. Cas., 552, 565, 579. In those instances where difficulty arises in determining whether labor or betterment upon an interstate line of railway is new construction work or repair and maintenance, the trend of decisions indicates that the doubt should be resolved in favor of the latter conclusion. Roberts on Federal Employers' Liability Act (2d Ed.) § 711.

As has been stated, the allegations of the declaration are to the effect that the carrier was engaged in the replacement of an old auxiliary engine with a new one, and that, in order to prevent any interruption to the use of the water tank in interstate commerce, the existing platform on which the old engine was placed was extended so as to...

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