Cincinnati, N.O. & T.P. Ry. Co. v. Hansford

• Decision Date: 10 January 1917
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. HANSFORD.
• Court: Kentucky Court of Appeals

190 S.W. 690

173 Ky. 126

CINCINNATI, N. O. & T. P. RY. CO. v. HANSFORD.

Court of Appeals of Kentucky.

January 10, 1917

Appeal from Circuit Court, McCreary County.

Action by James Hansford against the Cincinnati, New Orleans & Texas Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Edw Colston and John Galvin, both of Cincinnati, Ohio, and Tye Siler & Gatliff, of Williamsburg, for appellant.

John W Rawlings and Robert Harding, both of Danville, and Jno. W Sampson, of Whitley City, for appellee.

MILLER J.

This is an appeal by the railway company from a verdict and judgment against it, whereby the appellee, Hansford, recovered $1,000 for personal injuries. Hansford was a section hand, and was injured while loading, on a flat car, unused steel rails which had theretofore been removed from the track and left on the right of way. Hansford brought this action under the federal Employers' Liability Act of April 22, 1908; and the principal, if not the only, ground for a reversal is that the defendant's motion for a peremptory instruction at the conclusion of the plaintiff's testimony, and all the testimony, should have been sustained, upon the ground that Hansford had wholly failed to show he was engaged in interstate commerce, at the time he was injured.

The answer in its first paragraph denies that either the plaintiff or the defendant was engaged in interstate commerce at the time of his injury; in the second paragraph it interposes the defense of assumed risk upon the part of Hansford; while the third paragraph pleads contributory negligence. It will thus be seen that the pleadings squarely make the issue as to whether either Hansford or the defendant was engaged in interstate commerce at the time of his injury, and, since the testimony upon that issue is brief, we will give it in full.

Hansford, the plaintiff, testified as follows, upon this subject:

"Q. In what work were you engaged at the time? A. Working on the section, putting in ties and moving old rails, and keeping up the road work. * * * Q. What kind of rails were you loading, and on what sort of a car? A. We were loading 33-foot rails on a flat car. Q. Where were those rails lying when you began loading them? A. By the side of the track--the passenger (passing) track. * * * Q. How many rails had you loaded at this place? A. I could not say; I never counted them, some five or six probably. Q. Where did you find these rails; were they there on the ground? A. Yes, sir."

Norris, the section foreman, testified as follows:

"Q. What was he (Hansford) doing at the time he was injured? A. We were loading rails on a flat car. * * * Q. How many rails were loaded on the car at that time? A. I don't remember exactly how many. I believe we had six whole rails and some short pieces in the pile of scrap; had, I would say, five or six. * * * Q. And these rails, I believe you say, were old, worn-out rails? A. Yes, sir. Q. Come out of the track there? A. Yes, sir. Q. And as a part of your work in replacing them with new rails, you had to move the rails away from there, or load them and have them moved away? A. Yes, sir. Q. That was all a part of your work in keeping the track in good order and condition for the passage of trains? A. Yes, sir. * * * Q. In the work in which you and plaintiff were engaged you were required to keep the roadbed up and remove the old rails that had been taken out? A. Yes, sir. Q. And put in any new rails? A. We had not put in any new rails. Q. These old rails that were taken out of the road, they supplied new ones for them? A. Not always; sometimes we have a re-lay rail and some of them were good rails, and we keep them for re-lays."

This is all the testimony relating to the character of the plaintiff's work; and, when read and considered altogether, it is plain that appellee's answer, to the effect that he was working on the section, putting in ties and moving old rails, and keeping up the road track, was a mere description of the general character of the work he was engaged in, and not intended to mean that he was engaged in putting in ties at the time of his injury.

The federal Employers' Liability Act does not necessarily apply to the same person in all the details of his employment, since one man may have duties including both interstate and intrastate commerce, and he would be subject to the act while engaged in the one, and not in the other. Colasurdo v. Central R. R. Co. (C. C.) 180 F. 832, affirmed in 113 C.C.A. 379, 192 F. 901.

It will be observed that it nowhere appears that Hansford was engaged, either in taking out old rails or putting in new rails; the most that can be said from the proof is that Hansford was engaged in loading old rails that had, at some time, been taken out of the track and were lying on the right of way. This proof brings the case squarely within the decision in I. C. Ry. Co. v. Kelly, 167 Ky. 745, 181 S.W. 375, where it was held that a section hand, engaged in loading on a flat car, old rails from the right of way, precisely as in this case, was not engaged in interstate commerce. The Kelly Case is directly in point.

The true test as to whether one is engaged in interstate commerce is this: Was the employé, at the time of the injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it? Shanks v. Delaware, L. &. W. R. Co., 239 U.S. 558, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A. 1916C, 797. Applying this test to the facts of the case before us, it cannot be said that Hansford was engaged either in interstate transportation, or in work so closely related to it as to be practically a part of it. I. C. Ry. Co. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051, Ann.Cas. 1914C, 163; Delaware, L. & W. R. R. Co. v. Yurkonis, 238 U.S. 439, 35 S.Ct. 902, 59 L.Ed. 1397; Shanks v. Delaware, L. &. W. R. R. Co., supra.

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