Capps v. Atlantic Coast Line R. Co.

• Decision Date: 03 December 1919
• Docket Number: 58. [a1]
• Parties: CAPPS v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

101 S.E. 216

178 N.C. 558

CAPPS v. ATLANTIC COAST LINE R. CO.

No. 58. ^[a1]

Supreme Court of North Carolina

December 3, 1919

Appeal from Superior Court, Wilson County; Bond, Judge.

Action by E. B. Capps, administrator of I. M. Williamson, against the Atlantic Coast Line Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Civil action to recover damages for alleged negligent killing of plaintiff's intestate.

The plaintiff sues and insists on his right to recover under the federal Employers' Liability Act (Act April 22, 1908, c 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]), and it is admitted that defendant company at the time was a railroad corporation engaged as a common carrier in transporting inter and intra state commerce. There were also facts in evidence tending to show that at the time of the killing, August 1915, intestate was a member of a carpenter force in the employment of the defendant company, and as such was engaged in repairing a coal shute of defendant situated in the city of Richmond, Va., one of defendant's principal terminals when the steps leading up on the shute gave way, causing intestate to fall 30 to 40 feet, and resulting in fatal injuries, from which he soon thereafter died. The intestate and the force with which he was at work had been nailing plank on the body of the shute the better to hold in the coal, and that at the precise time of the injury, as we understand the evidence, were replacing a defective stringer in the upper flight of the steps leading up on the shute. This coal shute was a large wooden structure, used for storing or holding coal to be supplied to defendant's trains, some of which were engaged in transporting interstate and others intrastate passengers and freight, etc. There was also testimony tending to establish culpable negligence on the part of defendant--the proximate cause of the killing.

At the close of the testimony, the court, assuming the existence of facts tending to show negligence on the part of defendant, on motion entered judgment of nonsuit, and for the reason that the facts did not justify a recovery under the federal statute, on which the plaintiff bases his claim. Thereupon plaintiff, having duly excepted appealed.

O. P Dickinson, of Wilson, and Manning & Kitchin and James H. Pou all of Raleigh, for appellant.

F. S. Spruill, of Rocky Mount, and Carl H. Davis, of Wilmington, for appellee.

HOKE, J. (after stating the facts as above).

The federal Employers' Liability Act (Federal Statutes Anno. 1909 Supp. p. 584 [U. S. Comp. St. §§ 8657-8665]) is designed and purports to regulate suits for physical injuries or death of employés of railroad companies, while engaged as common carriers of interstate commerce, wrongfully caused by the negligence of the officers, agents, or employés of such carriers, or by reason of negligence in its cars, engines, appliances, machinery, track, roadbed, works, bolts, wharves, or other equipment. It is now well established that this statute, when the same applies, affords the controlling and exclusive rule of liability in these cases, and authoritative decisions construing the same are to the effect that in order to its proper application both the carrier and the employé must be engaged in interstate commerce, and in reference to the latter, in a more recent case, the position is stated with approval as follows:

"As to the employé the act applies where the particular service in which he is employed at the time of the injury is a part of interstate commerce." Ill. Cen. Ry. v. Behrens, 233 U S. 473, 34 S.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163; Pedersen v. D., L. & W. R. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153; Belch v. Railway, 176 N.C. 22, 96 S.E. 640, and authorities cited.

The cases on the subject hold further that the service of the employé should be properly considered a part of interstate commerce when his act at the time of the injury "was in aid of interstate transportation, or so nearly related to it as to be practically a part of it." Philadelphia, etc., Ry. v. Smith, 250 U.S. 101, 39 S.Ct. 397, 63 L.Ed. 869; Kinzell v. Chicago, etc., Ry., 250 U.S. 130, 39 S.Ct. p. 412, 63 L.Ed. 893; Erie, etc., Ry. v. Winfried, 244 U.S. p. 174, 37 S.Ct. 556, 61 L.Ed. 1057, Ann. Cas. 1918B, 662; So. Ry. v. Puckett, 244 U.S. 571, 37 S.Ct. 703, 61 L.Ed. 1321, Ann. Cas. 1918B, 69; Receivers Pecos & North Texas, etc., Ry. v. Rosenbloom, 240 U.S. 439, 36 S.Ct. 390, 60 L.Ed. 651. These and other like decisions being in approval and illustration of the Pedersen Case, supra, where it was determined that the act applied where the injured employé was engaged in carrying bolts to be used in the repairs of a bridge then being made; the bridge being within the confines of a state, but used by the company for both inter and intra state commerce, this on the ground that, as the bridge was itself an instrumentality of interstate transportation, the act of repairing it was necessarily one in aid of such transportation.

On the other hand, it was held in the case of Shanks v. Del etc., Ry., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C, 797, that an employé in a machine shop of a railroad company engaged in intra and inter state transportation, injured in taking down and putting up fixtures in the shop where engines engaged in such transportation were being repaired, could not maintain an action under the statute; and, applying the principle to the subject of coal as an agency of transportation, it has been held, in Del., etc., Ry. v. Yurkonis, 238 U.S. 439, 35 S.Ct. 902, 59 L.Ed. 1397, that an employé of the carrier engaged in mining coal for use in interstate locomotives was not engaged in interstate commerce within the meaning of the federal act; and in Chicago, etc., Ry. v. Harrington, 241 U.S. 177, 36 S.Ct. 517, 60 L.Ed. 941, that the statute was not applicable where the employé of the company was injured while engaged in removing coal from storage tracks, where it had remained for some time, to the company's coal sheds or shutes to be used in interstate hauls. And a similar ruling was made in Lehigh Valley R. R. v. Barlow, 244 U.S. 183, 37 S.Ct. 515, 61 L.Ed. 1070. In the last case the injury seems to have been received on the unloading trestle in the yards of the company. Again, in Kelly v. Pa. R. R., 238 F. 95, 151 C. C. A. 171, it was held by the Circuit Court of Appeals of Third Circuit that a plaintiff's cause was not within the statute when he, a foreman of a carpenter squad engaged in work of the company, had gone with some of his hands to do repair work on a roundhouse and coal shute, these structures being used for both classes of transportation, one of...