Boyer v. Pennsylvania R. Co.

• Decision Date: 08 April 1932
• Docket Number: 48.
• Parties: BOYER v. PENNSYLVANIA R. CO.
• Court: Maryland Court of Appeals

159 A. 909

162 Md. 328

BOYER v. PENNSYLVANIA R. CO.

No. 48.

Court of Appeals of Maryland

April 8, 1932

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 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 afford a base on which to set the new engine. By this method the old engine was continued in readiness to operate until it would be superseded by the installation of the new one. The water tank was the unit of operation and the old engine was merely a constituent part of the railway water tank, and so would be the new engine. Neither had, or would have, any independent utility, but each in turn was a necessary mechanical adjunct to prevent a failure in the water supply at the tank for interstate transportation. The enlargement of the base permitted this necessary repair to be made without affecting the operative utility of the water tank in interstate transportation and, so, had a direct, immediate and important relation to interstate transportation. Under these circumstances, the changes described were not original construction, but repair and maintenance in a railway structure continuously and exclusively in use as a necessary incident of interstate transportation. Supra: New York Cent. & H. R. R. Co. v. Carr, 238 U.S. 260, 264, 35 S.Ct. 780, 59 L.Ed. 1298. Compare Roberts on Federal Liabilities of Carriers (2d Ed.) §§ 785-788; 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 particular work being done upon the water tank, a railway contrivance in service in order to expedite, further, and facilitate the movement, and contribute to the safety, of interstate, etc., transportation, was not for the purpose of erecting a different structure or another equipment for use in the future, but to preserve and keep on its original location a subsisting railway instrumentality in constant readiness for its current and immediate use in exclusively interstate commerce. These attributes and circumstances distinguish this case from many of those relied upon in support of the contention that the work here involved was one of original construction. The decisions are so numerous and conflicting that their statement would be useless and their reconciliation impossible. They have been diligently and laboriously collected and grouped in section 51 (notes) of title 45 of the United States Code Annotated, and in 10 A. L. R. 1184, Hines v. Industrial Accident Commission, 184 Cal. 1, 192 P. 859, 14 A. L. R. 732, and Stavros v. Chicago, M. & St. P. R. Co., 151 Minn. 251, 186 N.W. 942, 24 A. L. R. 634. In reaching a conclusion, the decisions of the Supreme Court are of decisive weight, and, in our opinion, indicate the view that is here presented. 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. 86, 40 S.Ct. 454, ...