Coal & Coke Ry. Co. v. Deal

Decision Date02 February 1916
Docket Number1394.
Citation231 F. 604
PartiesCOAL & COKE RY. CO. v. DEAL.
CourtU.S. Court of Appeals — Fourth Circuit

George E. Price and Buckner Clay, both of Charleston, W. Va., for plaintiff in error.

Harold W. Houston, of Charleston, W. Va., for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD Circuit Judge.

The plaintiff instituted an action in the District Court of the United States for the Northern District of West Virginia under the federal Employers' Liability Act against the defendant to recover damages for alleged personal injuries. The trial in the court below resulted in a verdict in favor of plaintiff in the sum of $6,500, and the case comes here on writ of error. The plaintiff in error will be referred to as defendant, and the defendant in error as plaintiff; such being the respective positions occupied by the parties in the court below.

The defendant owns and operates a steam railroad located wholly within the state of West Virginia, running from the city of Charleston to the city of Elkins. It is conceded that at the time this cause of action arose defendant was engaged in the interstate transportation of freight and passengers within the meaning of the federal Employers' Liability Act. As a part of its equipment it owned and maintained along its track a telegraph and telephone line, over which it transmitted orders for the movement of its trains while engaged in interstate commerce. This line was out of repair at the time plaintiff was injured.

The defendant had in its employ a foreman by the name of Norval Sears whose duty it was to see that this line was kept in proper condition. Sears had been in the employ of the company for 4 1/2 years, and was clothed with the power of hiring and discharging workmen who worked under him, or assigning them places to work, and of furnishing them with the requisite tools and appliances. The men who worked under Sears did so under his direct personal commands and orders. At the time plaintiff received his injuries, four men were working under Sears. These workmen were Hambrick, Silman, Lewis, and Deal the plaintiff. The work in which they were engaged at that time was the taking down of defective telegraph and telephone poles and substituting new ones. The wires were merely transferred from the old to the new poles.

At the time Deal received his injuries, each of the four men working under Foreman Sears had assigned to them a given part of the work then being done. Foreman Sears stood at the butt of the poles as they were being raised and placed in position giving orders to the men and guiding the poles into their proper places. Hambrick, Lewis, and Deal were assigned the work of raising the poles, using for that purpose long wooden poles with iron spikes in one end. Deal, owing to his superior strength, had been assigned to the position of working directly beneath the poles as they were being raised while Hambrick and Lewis each worked on opposite sides of the poles, steadying and lifting them as they were being raised. The position of Deal was the most dangerous, as he was assigned to work directly beneath the poles. If, for any reason, a pole should fall, it would likely strike Deal. Among the tools and appliances then being used in the erection of the poles was one known as a 'deadman.' This is a wooden pole about six feet long, in the lower end of which is a spike to keep it from slipping when placed in position on the ground, and in the upper end is a semicircular piece of iron, with a small spike fitted in the middle, which is placed against the pole being raised. This appliance is used for the purpose of supporting the pole as it is being raised, to prevent it from falling, and to hold it while the men get a new hold with their spike poles.

One of these 'deadmen' was a part of the equipment which Foreman Sears had provided for the work in hand, and is an appliance or tool commonly used in such work. It had been used by the men regularly, under his direct orders, while they had been placing and raising poles about 25 feet long. Having received orders from the company to cut the poles to 20 feet Sears had directed the men to discontinue the use of the 'deadman.' This happened the day before Deal was injured. There is some conflict in the testimony as to whether the 'deadman' was with the other tools and appliances being used, on a hand car about 50 or 60 feet from where the pole that injured Deal was being raised.

It was shown that this pole was to be erected in an unusually dangerous place. The hole in which it was to be placed was dug on the side of a hill, about 10 feet from the edge of a 40-foot perpendicular embankment. Foreman Sears ordered Hambrick, Silman, and Deal to raise the pole, while Lewis was sent after a tamping bar. While Hambrick, Silman, and Deal were in the act of raising the pole, it fell and struck Deal on the side of the head, fracturing his skull and knocking him over the 40-foot embankment above mentioned, resulting in injuries so serious that he did not recover consciousness for 11 days. His injuries resulted in an impairment of his general health, partial destruction of the sight of one eye, dizziness when he stoops, and a material impairment of his earning capacity.

We are met at the threshold of this case with the question: Was the plaintiff, at the time he was injured, employed in interstate commerce? It is a matter of common knowledge that in order to successfully operate a railroad it is essential that a carrier should have a well-equipped telegraph or telephone line constructed and maintained near to and parallel with its tracks, so as to enable its train dispatchers to transmit train orders and thereby keep the engineers and conductors properly advised as to the relative positions of the respective trains. Under these circumstances a telephone or telegraph line is just as essential to the practical operation of the road as the track or any other particular part of the road's equipment.

Owing to the recent enactment of the statute under which this suit was brought, there has been more or less uncertainty as to the scope of the same. The roadbed and track constitute an essential element in the operation of trains, and acting upon this theory the Supreme Court of the United States, in the case of Pedersen v. Delaware, L. & W.R. Co., 229 U.S. 151, 33 Sup.Ct. 649, 57 L.Ed. 1125, Ann. Cas. 1914C, 153, in discussing this phase of the question, said:

'Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars, and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition, and efficiency of the commerce depends in large measure upon this being done. * * * We are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements, and the nature of each determined regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?'

The Supreme Court having declared that one who is injured while carrying spikes to be used in repairing a bridge over which interstate commerce is transported is deemed to be engaged in interstate commerce within the meaning of the act, it necessarily follows that, as in this instance, where one is injured while attempting to erect a telegraph pole to be used for the purpose of supporting wires over which messages are to be sent in directing the operation of trains in order that a company engaged in interstate commerce may safely operate its trains, such person is engaged in interstate commerce within the meaning of the act.

It is strenuously contended that this construction would violate the rule announced by the Supreme Court in declaring the first Employers' Liability Act unconstitutional, and lead to absurdities; in other words, that there would be no place where a line could be properly drawn. The answer to this contention is, we think, that whenever it appears that a party injured is engaged in employment that is necessary to the maintenance of any of the instrumentalities essential to the successful operation of a road by a carrier engaged in interstate commerce, such party is deemed to be engaged in interstate commerce, and in case of injury, while thus engaged, is...

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  • Montgomery v. CSX Transp., Inc.
    • United States
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    • 6 Diciembre 2004
    ...36 S.Ct. 624, 60 L.Ed. 1107 (1916); see also Chicago, Rock Island & Pac. R.R. v. Lint, 217 F.2d 279 (8th Cir.1954); Coal & Coke Ry. Co. v. Deal, 231 F. 604 (4th Cir.1916); Pitt v. Pennsylvania R.R., 66 F.Supp. 443 (E.D.Pa.1946), aff'd, 161 F.2d 733 (3rd Cir.1947). Although a railroad "is no......
  • Fenstermacher v. Chicago, Rock Island & Pacific Railway Company
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    ...to engines actually engaged in interstate commerce. His work was therefore closely connected with interstate commerce. In Coal & Coke Ry. Co. v. Deal, 231 F. 604, the was injured while engaged in the actual work of assisting in repairs being made upon a telegraph line, which was an intersta......
  • Brock v. Chicago, Rock Island & Pacific Railway Co.
    • United States
    • Missouri Supreme Court
    • 25 Noviembre 1924
    ... ... meaning of the act of Congress. Coal & Coke Ry. Co. v ... Deal, 231 F. 604, 145 C. C. A. 490, 215 F. 285, 232 F ... 1020, 245 U.S ... ...
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    ... ... Co. v. Azary, ... 40 S.C. 454; Gloucester Ferry Co. v. Penn., 114 U.S ... 196; Coal & Coke Ry. v. Deal, 231 F. 604; Erie ... Ry. v. Collins, 40 S.C. 450; Shanks v ... Railroad, ... ...
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