Brown's Adm'r v. Norfolk & W. Ry. Co.

• Decision Date: 19 April 1926
• Citation: 12 F.2d 319
• Court: U.S. District Court — Western District of Virginia
• Parties: BROWN'S ADM'R v. NORFOLK & W. RY. CO.

12 F.2d 319 (1926)

BROWN'S ADM'R v. NORFOLK & W. RY. CO.

District Court, W. D. Virginia.

April 19, 1926.

Wm. H. Werth, of Tazewell, Va., for plaintiff.

Joseph M. Sanders, of Bluefield, W. Va., and S. K. Funkhauser, of Roanoke, Va., for defendant.

McDOWELL, District Judge.

At the conclusion of all the testimony in the case, I ruled that the plaintiff's decedent was at the time of his injury employed in interstate commerce, but directed a verdict for the defendant. A motion for a new trial has been availed of to carefully again consider both the question as to the alleged negligence of the defendant and whether or not the decedent was at the time of his injury employed in interstate commerce. The first question need not be discussed, but the second is in one respect new. There was as to this question no conflict in the evidence. The problem is solely as to the meaning of the Employers' Liability Act (35 Stat. 65; 36 Stat. 291 Comp. St. §§ 8657-8665).

A stipulation made by the parties, and an agreed statement by the court reads as follows:

"It is stipulated and agreed as follows:

"First. That the defendant, the Norfolk & Western Railway Company, was engaged in interstate commerce at the time of the injury in question.

"Second. It is further stipulated and agreed that the mason's crew, of which the plaintiff's decedent was a member, had been, previous to the injury in question, assigned to work on a bridge in West Virginia, at or near Bluestone Junction, which bridge was regularly used in both intra and inter state commerce, and the crew was on its way to Bluestone Junction to perform their said duties on said bridge at the time of the accident.

"Third. It is further stipulated and agreed that the plaintiff, W. L. Brown, is the duly qualified and authorized administrator of the estate of W. E. Brown, the decedent named in the notice of motion.

"By the Court: At the request of counsel for defendant, it is, however, to be distinctly understood, that the defendant does not stipulate that the decedent was employed in interstate commerce at the time of his death."

Brown, the decedent, was a member of the mason's crew, and the one who held the seemingly coveted position of "kitchen flunkey." It was his duty to keep the kitchen car and also the dining car of the camp train supplied with water and with coal. This duty he was expected to perform early in the morning, and as soon as this work had been performed he had to join the remainder of the crew for service as a mason's helper. The camp train and the mason's crew had been for some days before the date of the accident at Graham, and did not leave there until nearly noon of that day. There was a supply of coal at Graham, near the camp train, and, as the work of the crew was expected to be and was finished in the forenoon, Brown did not join the mason's crew at work at all during the morning of the day of the accident, which occurred on November 12, 1924. He stayed at the camp cars all morning, and the foreman thought that he then got the coal for the kitchen and dining cars; but neither the foreman nor any other witness knew whether or not in fact Brown did get the coal for these two cars while at Graham.

At about noon of the day of the accident the camp train, on the way to Bluestone Junction, was temporarily halted at Flat Top yard, in order that the train crew could use the engine in shifting some freight cars on the yard. During this stop Brown, having provided himself with a sack, walked south from the camp train across two tracks, to some cars loaded with commercial coal standing on a siding, which was the third track from the one the camp train was on. After filling the sack with coal, and as he was starting or about to start back to the camp train with a bushel or more of coal in the sack, he was struck by an east-bound passenger train going at about 35 miles per hour, on the track next north of the siding on which the coal cars were standing.

The journey that was being made by the mason's crew was, I think, a necessary incident of and a preliminary part of the work to be done by the crew at Bluestone Junction. The members of the crew were paid for the time spent on the journey, exactly as if then engaged in actual work. Certainly they were then employed, and as the work to be done (Pedersen v. Del., etc., R. Co. 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153) was of interstate character, this preliminary part of it was of the same character. See Erie R. Co. v. Winfield, 244 U. S. 170, 173, 37 S. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662; Lamphere v. Oregon, etc., R. Co., 196 F. 336, 116 C. C. A. 156, 47 L. R. A. (N. S.) 1; Atlantic, etc., R. Co. v. Williams (C. C. A.) 284 F. 262. It follows that Brown, being a member of the crew, was employed in interstate commerce while waiting at Flat Top yard (Missouri, K. & T. Co. v. U. S., 231 U. S. 112, 119, 34 S. Ct. 26, 58 L. Ed. 144), unless his act in going across the tracks after coal changed his...