Darr v. Baltimore & O.R. Co.

• Decision Date: 22 June 1912
• Citation: 197 F. 665
• Parties: DARR v. BALTIMORE & O.R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

197 F. 665

DARR v. BALTIMORE & O.R. CO.

United States District Court, D. Maryland.

June 22, 1912

At Law. Action by George H. Darr against the Baltimore & Ohio Railroad Company. On motion by defendant for new trial. Overruled. Walter C. Capper, of Cumberland, Md., for plaintiff.

George A. Pearre, of Cumberland, Md., for defendant.

ROSE District Judge.

The plaintiff was employed by the defendant. He was injured while in its service. He brought suit under the federal Employer's Liability Act. He recovered a verdict. The defendant moves for a new trial. It says that the plaintiff was not entitled to the benefits of the act in question. His regular work was the making of what are called 'running repairs.' He was hurt while repairing the brake shoe of a locomotive tender or tank.

From the testimony offered on his behalf the jury were entitled to find that the locomotive and tender upon which he was working were habitually and regularly used by the defendant in interstate commerce. Their usual run carried them through the states of Maryland and West Virginia.

Upon the morning upon which the accident happened, and very shortly before its occurrence, they had brought a train from Brunswick, Md., through West Virginia to Cumberland, Md. They were later in the day to take a train back over the same route, and they did. It does not appear that in the interval they were otherwise used. Upon their arrival in Cumberland they were, as usual, run upon what is called the 'fire track.' The evidence as to the uses to which the locomotive and tender were put by the defendant, and the way in which they were employed on the day in question, was put in by the plaintiff. The defendant offered no evidence on the subject. A bolt had fallen out of the brake shoe on one of the wheels of the tender. As a result the brake beam hung down in dangerous proximity to the rail. The plaintiff was directed to make the necessary repairs. He found the tender on the fire track. While engaged in repairing it, he was injured as the result of the negligence of a fellow employe who had, contrary to the directions of the plaintiff and unknown to him, put the air on the brake.

The defendant says that neither it nor the plaintiff was at the time of the accident engaged in interstate commerce. It relies especially on Pedersen v. Delaware, Lackawanna &amp Western Railway Co., 197 F. 537, recently decided by the Circuit Court of Appeals for the Third Circuit, and apparently as yet unreported. That case affirms the judgment of the District Court for the Eastern District of Pennsylvania. The opinion of Judge McPherson, who heard the case below, is reported in 184 F. 737.

In the Pedersen Case the employe injured was engaged in constructing a track which when finished was to be used in both interstate and intrastate commerce. While in the act of obtaining some materials for this work, he crossed a track of the railroad company in use. He was struck by an intrastate train. The court held that the act applies only to those cases in which at the time of the accident both the employer and the employe are engaged in interstate commerce. Under the facts before them they thought neither were. They said the construction they put upon the act did not-- 'by reason of the general character of their customary work, draw an arbitrary line and confer the benefit of the act on certain employes, such as engineers, firemen conductors, and brakemen, and exclude others, such as bridge builders, station employes, or track laborers. On the contrary, it makes the relation of the employe's particular work to interstate transportation at the time the injury is sustained the test. This may often be a difficult subject owing to the complicated character of a railroad's business, and illustrations may be misleading. But we think reflection will make it clear that the same kind of an act may at one time be a part of interstate transportation and at another time may have nothing to do with it. If, for example, the nature of an employe's occupation is such that he is sometimes helping to move interstate trains and again is helping to move trains that are purely local, all that can be said as a general proposition is that the act of Congress protects him in one case and does not protect him in another. The power of Congress is adequate in one case and does not exist in the other. It is inevitable that each situation must be considered by itself and must be tested by the requirements prescribed by Congress.'

In Colasurdo v. Central R.R. Co. of New Jersey (C.C.) 180 F. 832, the plaintiff was a track repairer on the Central Railroad of New Jersey. The tracks were used for both interstate and intrastate business. The injury for which the plaintiff sued was inflicted by a train which was running from one point in New Jersey to another, although at its terminus it connected with ferries over which some of its passengers went to New York. Judge Hand, while recognizing that the act required that both the carrier and the employe should at the time of the happening of the injury be engaged in interstate commerce, pointed out that:

'If the employe was engaged in such commerce so was the road, for the road was the master and the servant's act its act.'

This case was carried on appeal to the Circuit Court of Appeals for the Second Circuit. That tribunal said:

'We think the statute was intended to apply to every carrier while engaged in interstate commerce, and to an employe of such carrier while so engaged, and if these conditions concur the fact that the carrier and the employe may also be engaged in intrastate commerce is immaterial. The plaintiff was repairing an interstate road over

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