Chicago K. & S. Ry. Co. v. Kindlesparker

• Decision Date: 06 June 1916
• Docket Number: 2757.
• Citation: 234 F. 1
• Parties: CHICAGO, K. & S. RY. CO. v. KINDLESPARKER.
• Court: U.S. Court of Appeals — Sixth Circuit

234 F. 1

CHICAGO, K. & S. RY. CO. v. KINDLESPARKER.

No. 2757.

United States Court of Appeals, Sixth Circuit.

June 6, 1916

S. E Knappen, of Grand Rapids, Mich., for plaintiff in error.

C. F Hext, of Grand Rapids, Mich., for defendant in error.

Before WARRINGTON and DENISON, Circuit Judges, and SANFORD, District judge.

WARRINGTON Circuit Judge.

Kindlesparker recovered a verdict and judgment under the federal Employers' Liability Act for personal injuries sustained while in the employ of the railroad company; it will be convenient to refer to Kindlesparker as plaintiff, and the railroad company as defendant. The sole issue presented here is whether plaintiff was engaged in interstate commerce at the time he received his injuries. The southern terminus of defendant's railroad was at Kalamazoo and the northern terminus at Woodbury, within the state of Michigan, and the business consisted of general passenger and freight traffic. The railroad, however, connected with 'all of the roads' passing through Kalamazoo, and at Woodbury with the Pere Marquette line. It is not shown what railroads pass through Kalamazoo, though the superintendent testified that defendant's local agent in that city 'would have the records of shipments, say from any station on our line to Chicago. ' Further, it was conceded by defendant, at the trial below, that the freight trains operated on its line 'contained indiscriminately cars bound between-- cars and freight generally bound between-- points entirely within this state, and points from outside of the state to this state and from points in this state to points outside of the state'; and admittedly the defendant's connection at Woodbury was with an interstate road-- the Pere Marquette line.

The defendant owned and operated six locomotive engines; only three of these engines were used daily, one in the passenger service, and one in the freight traffic over the line, and one in the switching service at Kalamazoo. The other three except on extraordinary occasions, were kept in the roundhouse and ready for service, or in the shops under repair; in other words, subject to this rotation in service, five of the engines were used alike in general service and one of them in switching service; and the engines were all used indiscriminately in the movement of intrastate and interstate traffic, regardless of the particular service in which they were employed.

Plaintiff received his injuries from engine No. 4, July 3, 1914, and while engaged in repairing it. He was in the employ of defendant as helper in its shops at Kalamazoo, and at times acted as fireman. April 15, 1914, engine No. 4 was placed in the shops for general repairs, and the repairs were completed July 4th. July 3, engine No. 4 was removed under its own steam from the shops to the turntable, where the boiler maker 'set the pops'; it was then taken to the cinder pit, and plaintiff, acting under instruction to enter the pit beneath the engine and place the grease cellar upon it, received his injuries while so engaged. This was the last work required in the repair of the engine, and it was completed by another person on the day following. As regards this engine it was agreed at the trial, as follows: That for eleven days in March, between the 3d and 31st, and for four days in April, from the 1st to the 4th, inclusive, the engine was used in the switching service at Kalamazoo; March 12th, 13th, and 14th it was used in the passenger service between Kalamazoo and Woodbury; on all other days between March 1st and April 15th it was not in use; and after the repairs were completed, the engine was used for six days in July, between the 7th and 16th, in the switching service at Kalamazoo, for four days in that month, between July 13th and 20th, in the freight service between Kalamazoo and Woodbury, and on all other days between the 3d and 20th of July it was not in service of any kind. It was further stipulated that while engine 4 was used in switching operations, as stated, 'it handled indiscriminately intrastate and interstate freight,' and while used in freight operations as pointed out, the freight trains were 'composed of cars containing intrastate and interstate commerce.'

In determining whether plaintiff was engaged in interstate commerce at the time of his injuries, consideration must be given to the character of the instrumentality upon which he was working and the nature of the work he was performing. The character of the locomotive, the instrumentality, may be ascertained both from the nature of the railroad on which defendant was accustomed to operate the engine and of the traffic handled by it. In view of all the facts above pointed out, it would seem plain enough that defendant's road constituted a link in interstate lines for all purposes of interstate and intrastate traffic. At the time in question, as we have seen, defendant was transporting freight both ways upon its line, and also handling freight in its yards, which originated upon its connections at points without and was destined to points within the state and also freight which originated within and was destined to places without the state; and, it is true, defendant was also transporting freight originating and destined locally within the state. The former fact, however, concerning freight interstate cannot be ignored because of the latter fact touching freight intrastate. Every road, which physically extends into or through two or more states and is so operated, necessarily carries both classes of freight, interstate and intrastate, and yet we do not see how it can in reason be said of such a carrier that it is any more certainly 'engaging in commerce between any of the several states,' within the meaning of the Employers' Liability Act, than the present defendant was at the time plaintiff received his injuries; the latter situation as well as the former answers to the language of the act, 'that every common carrier by railroad while engaging in commerce between any of the several states * * * shall be liable in damages * * * by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed,' etc. 35 Stat. 65 (Comp. St. 1913, Sec. 8657). True, defendant's railroad, in a physical sense, was entirely within the limits of the state of Michigan, but this did not prevent defendant from connecting the road with admittedly interstate lines and so engaging in interstate commerce; in every practical sense, according to the present record, defendant had at the time in question appropriated its road as well as its yards to the transportation and handling of interstate traffic as definitely as it had of traffic of an intrastate character, and these conditions existed at the time of the accident and afterwards. When a company thus in effect dedicates such a road and the yards to a dual use-- interstate and intrastate-- it invests the road with the characteristics of an interstate line and subjects it to the obligations of that sort of a line. It makes it a part of the through line and becomes entitled to a part of the receipts derived from the through service. Its duties must correspond with the benefits it seeks; it must respond to federal law and regulation; this, however, is not in any true sense violative of its rights and and duties as an intrastate carrier; nor does it open either the defendant or its road to the objectionable features found in the first Employers' Liability Act (Act June 11, 1906, c. 3073, 34 Stat. 232) 207 U.S. 463, 28 Sup.Ct. 141, 52 L.Ed. 297. The principle declared in relation to rates over an intrastate road in Cin., N.O. & Tex. Pac. Railway v. Int. Com. Com., 162 U.S. 184, at page 192, 16 Sup.Ct. 700, at page 703 (40 L.Ed. 935), is applicable as regards the interstate character of the present railroad. It was there said:

'Having elected to enter into the carriage of interstate freights and thus subjected itself to the control of the Commission, it would not be competent for the company to limit that control, in respect to foreign traffic, to certain points on its road and exclude other points.'

In United States v. Union Stockyards, 226 U.S. 286, 304, 33 Sup.Ct. 83, 88 (57 L.Ed. 226), when speaking of an intrastate service in connection with an interstate movement of freight, it was held:

'That the service is performed wholly in one state can make no difference if it is a part of interstate carriage.'

It results that such an appropriation as defendant has made of its railroad and yards subjects it to the exactions of the federal Employers' Liability Act, since it prevents effective distinction from the rule laid down in the opinion of the court in the Pedersen Case, 229 U.S. 146, 152, 33 Sup.Ct. 648, 650 (57 L.Ed. 1125, Ann. Cas. 1914C, 153):

'True, a track or bridge may be used in both interstate and intrastate commerce, but when it is so used it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce.'

We are therefore not convinced of the soundness of an argument urged by the learned counsel that defendant's road is primarily an instrument of intrastate commerce and that the plaintiff's rights must be tested upon the theory that the engine he was engaged in repairing was of the same character. We thus come to a consideration of the locomotive as an instrument of commerce, and of the kind of commerce in which plaintiff was engaged when injured. The considerations which have induced us to believe that defendant's road is an essential part of an interstate line, would naturally lead to a similar conclusion as respects...