Cincinnati, N.O. & T.P. Ry. Co. v. Morgan
| Decision Date | 11 February 1918 |
| Citation | 201 S.W. 128,139 Tenn. 27 |
| Parties | CINCINNATI, N. O. & T. P. RY. CO. v. MORGAN. |
| Court | Tennessee Supreme Court |
Certiorari to Court of Civil Appeals.
Suit by W. E. Morgan against the Cincinnati, New Orleans & Texas Pacific Railway Company. Judgment for plaintiff was reversed by the Court of Civil Appeals, and plaintiff brings certiorari. Judgment of Court of Appeals reversed, and that of lower court affirmed.
This suit was brought by Morgan to recover damages for personal injuries; the action being founded on the federal Employers' Liability Act. He was granted a judgment based on the verdict of a jury in the circuit court, after a motion of the defendant railway company for peremptory instructions had been overruled. On appeal the Court of Civil Appeals reversing the judgment, sustained the motion for instructed verdict, and dismissed the suit.
A petition for certiorari was filed by Morgan under which we ordered and have heard oral argument.
An underlying question is whether Morgan was employed at the time he was injured in work which brings his case within the act of Congress upon which it is based.
He was a hostler in the yards of the railway company at Oakdale Tenn., which is a division terminal. He was engaged at night work, firing engine No. 813, which by bulletin announcement or by a call (known to Morgan) had been designated to pull an interstate passenger train from Oakdale to Danville, Ky Engines of its class--the 800 class--were to all intents and purposes used exclusively and habitually in runs north from Oakdale to Danville. Narrow bridges to the south prevented the use of that class in journeys to Chattanooga, Tenn., the next division point in that direction. Engine No. 813 had come in from Danville pulling train No. 15, and after lying at Oakdale for 13 1/2 hours was to pull return train No. 16 to Danville. In the meantime the accident to Morgan happened.
It appears that in firing the engine a blowpipe was used, and that it was inserted by Morgan in the smokestack and left for some time. When the hostler returned and was removing the blower, it struck against the stack, and one of its sections became detached and fell back into the boiler. Morgan then went to get Jones, the boilermaker of defendant, to supervise opening a door in the head of the boiler in order to admit of a helper going in and recovering this detached section of pipe.
It appears that the inspector of equipment who was engaged in inspecting a nearby engine saw Morgan leave engine No. 813, and the inspector proceeded to the latter locomotive to test its air appliances and other mechanical equipment, as was his duty after it had been fired up. There is some evidence to the effect that an assistant was on the cab of engine 813 with the inspector--on the left side. While the inspectors were on the cab of the engine, Morgan, Jones, and a helper returned, and after the boilerhead had been opened Morgan ascended the pilot and was standing in front of the smokestack, where, leaning over, he reached down to receive the section of the blower pipe as it would be handed up to him by the helper who had crawled within. In this position Morgan was struck by a heavy oval metal hood which was attached to the smokestack for use as a fender to protect the enginemen from gusts of smoke and cinders as the locomotive ran through tunnels on defendant's line of railway. This hood was suddenly moved in his test of its working condition by the inspector from his place in the cab. The inspector did not know of the presence of Morgan on the boiler when he turned the valve that operated the hood. He could only have seen Morgan by putting his own head out of the cab window. He was on the right side; but his helper was on the opposite side, and Morgan stood toward the left side of the smokestack.
On the fundamental question we are of opinion that Morgan was, at the time he was injured, engaged at a task that falls within the scope of the federal Employers' Liability Act. All that he did looked to the firing of the engine and turning it over in proper condition to be attached to and as a part of an interstate train.
Each case based on the act must be decided in the light of its own facts, and necessarily there arise many border-line cases. The test by which to determine whether, at the time of a given injury, the employé was engaged in an interstate commerce transaction is: Was his act one which was so directly and immediately connected with such business as substantially to form a part or a necessary incident thereof? New York Cent., etc., R. Co. v. Carr, 238 U.S. 260, 35 S.Ct. 780, 59 L.Ed. 1298.
In order to bring the employé within the protection of the act, it is not necessary that he be directly engaged in an interstate train movement, since his task may be but an incident, preliminary but necessary, to that movement. In Norfolk & Western R. Co. v. Earnest, 229 U.S. 114, 33 S.Ct. 654, 57 L.Ed. 1096, Ann. Cas. 1914C, 172, the employé whose action was sustained was injured while piloting a locomotive through the yard, by walking ahead of it, to the main track, where it was to be attached to an interstate train.
The railway company mainly relies upon the recent case of Minneapolis & St. L. R. Co. v. Winters, 242 U.S 353, 37 S.Ct. 170, 61 L.Ed. 358, where it was held that a machinist's helper engaged in the making of repairs in a roundhouse upon an engine which had been used in hauling trains which had carried both intrastate and...
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