Boyle v. Pennsylvania R. Co.

• Decision Date: 08 December 1915
• Docket Number: 1977.
• Citation: 228 F. 266
• Parties: BOYLE v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Third Circuit

228 F. 266

BOYLE v. PENNSYLVANIA R. CO.

No. 1977.

United States Court of Appeals, Third Circuit.

December 8, 1915

Charles Petchon and Bertram D. Rearick, both of Philadelphia, Pa for plaintiff in error.

John Hampton Barnes, of Philadelphia, Pa., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

WOOLLEY Circuit Judge.

The question is whether the deceased was employed in interstate commerce at the time he was injured.

The defendant railroad company operated companion trains moving in opposite directions between Philadelphia and Pottsville in the State of Pennsylvania. They were scheduled to pass at Phoenixville, the northbound train being due to arrive two minutes before the southbound train. Thomas Boyle, the plaintiff's intestate, was a car inspector in the employ of the defendant at Phoenixville. It was his duty to inspect both trains. On the day in question, he had completed the inspection of the northbound train, which was the first to arrive. While waiting to inspect the southbound train, which he saw approaching, Boyle stood in the space between the tracks on which the two trains moved, leaning against the engine of the train he had just inspected. While in this position, he was struck by the engine of the southbound train, and received injuries from which he died.

The two trains moved between points within the State of Pennsylvania. Both were advertised on the defendant's time table to connect at West Philadelphia with trains to and from New York. Neither, at the time of the injury to Boyle, was shown to have been transporting passengers, baggage or express matter in interstate commerce. The court submitted the issue of negligence to the jury upon instructions with respect to the defendant's liability under the Federal Employers' Liability Act of April 22, 1908 (35 Stat. 65). These instructions were, in part, as follows:

'I charge you, as a matter of law, that it is not sufficient that this defendant is at times engaged in interstate commerce. That will not do. It is not sufficient that it is prepared to do interstate commerce and holds itself out as ready to do it. The thing that you must find, under the evidence in this case, is that at the time this man was killed, this company was at that time and the train about which he was employed was engaged in interstate commerce. That means, getting it down to a nut-shell, whether there was anyone on that train, any baggage upon that train, that at that time were being carried from one state to another. If there was any of that kind of business being done at that time, that is interstate commerce. If it was not being done at that time, then the defendant was not engaged in interstate commerce and that is the end of the case. * * * Let me say again, the fact that it at times does it or ordinarily does it, the fact that it stands ready to do it and advertises by its schedules or otherwise, that it is ready to do it, is not enough. You must take it upon your consciences to say that it has been proven by the evidence in this case to your satisfaction that it was so engaged at the time.' The jury rendered a verdict for the defendant.

The only error assigned is in the portion of the charge above quoted, in which the trial judge suggested a test or established a standard by which the jury was required to determine whether the deceased was employed in interstate commerce at the time he sustained his injuries. The error consists, as it is contended, in restricting the test to the character of commerce in which the train was engaged at the precise time the injuries were inflicted, indicated by the presence or absence of passengers and baggage being carried to another State, and in not extending the test to other considerations which are conceived to be equally pertinent. One is that the prompt and safe movement of an intrastate train is so necessary to the safety and unimpeded movement of interstate trains moving over the same track, that inspection of the intrastate train becomes a part of interstate commerce. The other is that the advertised fact that an intrastate train connects at West Philadelphia with trains to and from New York, makes that train a link in an interstate system and therefore a part of interstate commerce, and that inspection of such a train is employment in such commerce.

In support of the first exception to the charge, the plaintiff in error cites and relies upon the line of cases, holding generally that the work of repairing or maintaining instrumentalities used indiscriminately in intrastate and interstate commerce is employment in interstate commerce.

The contention of the plaintiff in error is based upon the admittedly correct proposition that a car which has been and may again be used indiscriminately in intrastate and interstate commerce, is an instrument of interstate commerce. Northern Pacific Ry. Co. v. Maerkl; 198 F. 1, 4, 117 C.C.A. 237; Interstate Commerce Commission v. Illinois Central R.R. Co., 215 U.S. 452, 30 Sup.Ct. 155, 54 L.Ed. 280. Employment upon such an instrument of commerce may be of two kinds; first, repairing or preparing it for use in commerce of both kinds; second, using it in commerce of one kind or the other. With respect to employment upon such an instrument of interstate commerce, the plaintiff cites and relies upon several cases, of which the first is Northern Pacific Ry. Co. v. Maerkl, supra, cited by the Supreme Court in Pedersen v. D.L. & W.R.R. Co., infra. In this case, the court held that a workman employed in the repair shops of a railroad company in repairing a car having been used and intended again to be used in commerce of both kinds, is employed in interstate commerce, and if injured when so employed, he is within the protection of the Federal Employers' Liability Act. It is to be noted that the work that Maerkl was doing was not using an instrument of commerce in interstate commerce, but was preparing that instrument for use in commerce either of one kind or the other, and therefore for use in interstate commerce.

In North Carolina Ry. Co. v. Zachary, 232 U.S. 248, 34 Sup.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159, the employment of the injured employe was very similar to that of Maerkl. In this case, the deceased was a fireman on a train about to move between interior points in the State of North Carolina. The train included two cars which had come from the State of Virginia. After preparing his engine to move the train and continue the transportation of the two cars in interstate commerce, though between intrastate points, the fireman was killed. The court held that 'his acts in inspecting, oiling, firing and preparing his engine for the trip' were acts performed as a part of interstate commerce. The deceased was employed in preparing an instrument for use in interstate commerce, and the fact that two of the cars of the train were carrying interstate freight, though vigorously controverted, was the fact upon which the interstate character of the employment of the deceased was established. There is a distinction between employment in preparing an instrument of commerce for use, and employment in using such an instrument in commerce. Preparation of an instrument for use in commerce of both kinds necessarily means preparation for use in commerce of either kind, and as one kind is interstate commerce, it follows logically that such preparation is for use in interstate commerce, but employment connected with the actual use of such an instrument is a part of intrastate or interstate commerce according as the instrument is in use in commerce of one kind or the other. The preparation for use, and the use of instruments in commerce of both kinds, are sometimes not easily distinguishable, when, for instance, the instrumentality is such as a railroad bridge or a railroad track. Upon cases dealing with such instrumentalities, the plaintiff in error principally relies to sustain his contention that preparation of an instrument of commerce having a double use, is interstate commerce, without regard to the kind of commerce in which the instrument is actually employed at the time of an injury. Of course, the leading case upon this subject is Pedersen v. D.L. & W.R.R. Co., 229 U.S. 146, 33 Sup.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153. At the time Pedersen was injured, he was engaged in repairing a bridge which formed a part of the main line of the defendant's railroad. The court held that the bridge, though used indiscriminately in the two kinds of commerce, was an instrument of interstate commerce, and that in repairing the bridge, Pedersen was employed in such commerce. The...