Delong v. Me. Cent. R. Co.

• Decision Date: 24 May 1939
• Citation: 6 A.2d 431
• Parties: DELONG v. MAINE CENT. R. CO.
• Court: Maine Supreme Court

6 A.2d 431

DELONG

v. MAINE CENT. R. CO.

Supreme Judicial Court of Maine.

May 24, 1939.

Exceptions from Superior Court, Kennebec County; Herbert T. Powers, Judge.

Action by Bertrum E. Delong against the Maine Central Railroad Company for injuries sustained from a fall from a step-ladder. From the trial court's direction of a nonsuit, plaintiff brings exceptions.

Exceptions overruled.

Argued before DUNN, C. J, and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Peter A. Isaacson, of Lewiston, and Ernest L. Goodspeed, of Augusta, for plaintiff.

Perkins & Weeks, of Waterville, for defendant.

HUDSON, Justice.

The plaintiff excepts to the direction of a non-suit. A decisive question is the applicability of the Federal Employers' Liability Act, U.S.C.A, Title 45, Sec. 51 et seq. If applicable, the action is not sustainable because not seasonably commenced. Id, Sec. 56.

The facts material to the issue seem to be undisputed and consequently, "whether the injured servant was in interstate commerce is for the court." Hatch v. Portland Terminal Company, 125 Me. 96, 102, 131 A. 5, 8.

The plaintiff, employed by the defendant as clerk, janitor, and telegrapher at its station in South Gardiner, fell from a stepladder then used in installing a fuse in an electric light circuit. This circuit conducted electricity to lights in the various rooms of the station, on its platform, and particularly, so far as this case is concerned, to a bulb that illuminated three lenses—green, red, and yellow—in a "semaphore train order signal." Hand Operated from the office by the plaintiff or Mr. Harris, the station agent, the function of this device was to transmit train orders. The lenses and movable arms were so employed. Green indicated "Proceed," yellow, "Proceed cautiously," and red, "Stop." The bulb, lighted from sunset to sunrise, enhanced the brilliancy of the colored lenses so that they could be seen the better from afar and thus the order be earlier received. A tell-tale light in the office indicated any failure of the bulb to function.

That day the plaintiff had been working from 11:30 A. M. to 7:30 P. M. As he was about to leave for home (the station, agent not there), in turning off the light over the desk in the office, he "blew the fuse" in the baggage room. This caused all lights on the circuit to go out. To relight, he had just put the new fuse in when he fell.

South Gardiner was a day station only, open for business from 5:30 o'clock in the morning to 7:30 o'clock at night. The agent himself was on duty in the morning to 1:30 o'clock in the afternoon, and the plaintiff, his assistant, from 11:30 A. M. to 7:30 P. M.

It is conceded that three interstate trains were to pass that night. It is admitted that the defendant at the time of the accident was engaged in interstate commerce and that the signal served both interstate and intrastate commerce.

The contention of the plaintiff is that at the time he received his injuries, his act was "without commerce", while the defendant insists it was one of interstate commerce.

The federal act provides in part: "Every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * *." 45 U.S.C.A. § 51.

When this statute attaches, it "supersedes all state laws." Hatch v. Portland Terminal Company, supra, 125 Me. on page 99, 131 A. on page 7. "State statutes previously operative" yield "to its paramount and exclusive power." Corbett v. Boston & Maine Railroad, 219 Mass. 351, 356, 107 N.E. 60, 62, 12 A.L.R. 683; Lynch v. Boston & Maine Railroad, 227 Mass. 123, 126, 116 N.E. 401, L.R.A.1918D, 419. But the governing law as to evidence and procedure is that of the forum. Grant v. American Ry. Express Company, 126 Me. 489, 490, 139 A. 784.

Throughout the country reported cases, almost without number, both federal and state, have dealt with this statute, but in most, if not in all, the test applied is: Was the employee, at the time of the injury, engaged in interstate transportation, or in work so closely related to it as to be practically part of it? Our court in Hatch v. Portland Terminal Company, supra, thus expressed it: "At the time of the injury, the employer and employee must be in interstate business, or in work so closely related to transportation of this sort, or so directly connected with it, as substantially to form a part of it."

Also see Saunders v. Boston & Maine Railroad, 287 Mass. 56, on page 59, 191 N.E. 381, and many cases cited in 10 A. L.R. 1184 et seq.

The test agreed upon, the chief difficulty lies in its application to the facts in a given case. Some work performed by the employee is held to be too remote, as in Shanks v. Delaware, L. & W. R. Co., 1916, 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A.1916C, 797, putting up fixtures in railroad machine shop; Killes v. Great Northern Ry, 1916, 93 Wash. 416, 161 P. 69, building scaffold for painting freight shed; Dunn v. Missouri Pac. Ry. Co., 1916, Mo.App, 190 S.W. 966, riveting stovepipe for stove to be used in roundhouse; Castonguay v. Grand Trunk R. Co., 1917, 91 Vt. 371, 100 A. 908, repairing roundhouse wall; Benson v. Bush, 1919, 104 Kan. 198, 178 P. 747, 10 A.L.R. 1165, starting fire in depot stove; Industrial Accident Commission of State of California v. Davis, 1922, 259 U.S. 182, 42 S.Ct. 489, 66 L.Ed. 888, overhauling locomotive in general repair shops; Sullivan v. New York, N. H. & H. R. Co., 1926, 105 Conn. 584, 134 A. 795, turning off station lights; Fears v. Boston & M. R. R, 1933, 86 N.H. 206, 166 A. 283, breaking down frozen crust at top of contents of coal chute; Gasser v. Central R. Co. of New Jersey, 1934, 112 Pa.Super. 420, 171 A. 97, sweeping platform; Los Angeles & S. L. R. Co. v. Industrial Accident Com'n, 1935, 2 Cal.2d 685, 43 P.2d 282, constructing detour in power line; Furferi v. Pennsylvania R. Co., 1935, 180 A. 405, 13 N.J.Misc. 574, unloading ties for storage; and Clevinger v. St. Louis-San Francisco Ry. Co., 1937, 341 Mo. 797, 109 S.W.2d 369, cutting weeds, while other work, not too remote, as in Pedersen v. Delaware, L. & W. R. Co 1913, 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas.1914C, 153, carrying bolts or rivets to bridge; Eng v. Southern Pac. Co., 1913, D.C., 210 F. 92, constructing new office in freight shed; Grow v. Oregon Short Line R. Co., 1914, 44 Utah 160, 138 P. 398, Ann.Cas.1915B, 481, block system; Cincinnati, N. O. & T. P. Ry. Co. v. Bonham, 1914, 130 Tenn. 435, 171 S.W. 79, performing duties as signal man; Thompson v. Cincinnati, N. O. & T. P. Ry. Co., 1915, 165 Ky. 256, 176 S.W. 1006, Ann.Cas.1917A, 1266, carpentering on extension to repair shops; Ross v. Sheldon, 1915, 176 Iowa 618, 154 N.W. 499, putting additional cross-arms on poles in signal system; Coal & Coke Ry. Co. v. Deal, 1916, 4 Cir, 231 F. 604, replacing defective telegraph and telephone poles; Grand Trunk Ry. Co. of Canada v. Knapp, 1916, 6 Cir, 233 F. 950, carpenter on way to repair bridge; Collins v. Michigan Cent. R. Co., 1916, 193 Mich. 303, 159 N.W. 535, stringing wires on poles; Southern Pac. Co. v. Industrial Accident Commission, 1916, 174 Cal. 16, 161 P. 1142, flagging electric train; Roush v. Baltimore & O. R. Co., 1917, D.C, 243 F. 712, operating pumping station; Lynch v. Boston & Maine Railroad, 1917, 227 Mass. 123, 116 N.E. 401, L.R.A.1918D, 419, employee crossing track to receive mail; Louisville & N. R. Co. v. Mullins' Adm'x, 1918, 181 Ky. 148, 203 S.W. 1058, signalman going home on tricycle furnished by railroad; Brier v. Chicago, R. I. & P. Ry. Co., 1918, 183 Iowa 1212, 168 N.W. 339, about to straighten poles; New York Cent. R. R. Co. v. Porter, 1919, 249 U.S. 168, 39 S.Ct. 188, 63 L.Ed. 536, shovelling snow from tracks; Culp v. Atlantic City R. R, 1919, 93 N.J.L. 244, 110 A. 115, painting baggage room; Southern Pac. Co. v. Industrial Accident Comm., 1920, 251 U.S. 259, 40 S.Ct. 130, 64 L.Ed. 258, 10 A.L.R. 1181, wiping insulators; Delaware, L. & W. R. Co. v. Busse, 1920, 2 Cir, 263 F. 516, repairing a pier shed door; Stiedler v. Pennsylvania R. Co., 1920, 94 N.J.L. 197, 109 A. 512, painting a pole used in electric railroad operation; Saxton v. El Paso & S. W. R. Co., 1920, 21 Ariz. 323, 188 P. 257, installing block system; Erie R. R. Co. v. Collins, 1920, 253 U.S. 77, 40 S.Ct. 450, 64 L.Ed. 790, running gasoline engine to pump water into tank; Charlotte Harbor & N. Ry. Co. v. Truette, 1921, 81 Fla. 152, 87 So. 427, injury to telephone repairer on duty going to work; Philadelphia & Reading Ry. Co. v. Di Donato, 1921, 256 U.S. 327, 41 S.Ct. 516, 65 L.Ed. 955, struck by train while flagging; Philadelphia & Reading Ry. Co. v. Polk, 1921, 256 U.S. 332, 41 S.Ct. 518, 65 L.Ed. 958, caught and killed between cars; Halley v. Ohio Valley Electric Ry. Co., 1922, 92 W.Va. 172, 114 S.E. 572, installing a new rotary converter and transformer; Bauchspies v. Central R. Co. of New Jersey, 1927, 287 Pa. 590, 135 A. 728, performing duty as caretaker of switches, signals, batteries, etc.; Chesapeake & O. Ry. Co. v. Russo, 1928, 91 Ind.App. 648, 163 N.E. 283, performing duty as water boy to crew or track repairmen; Texas & Pac. Ry. Co. v. Kelly, 1930, Tex.Civ.App, 35 S.W.2d 749, installing signal system; Steward v. Industrial Commission of Utah, 1932, 80 Utah 394, 15 P.2d 334, recharging batteries in block system; Bennor v. Oregon-Washington R. & Nav. Co., 1933, 175 Wash. 559, 27 P.2d 1082, assistant cook to repair gang injured while carrying beef to boarding cars of work train; and Lynch v. Central Vermont Ry. Co., 1936, 121 Conn. 461, 185 A. 569, crossing tender killed while proceeding to set semaphores.

Some acts have direct relationship to both kinds of commerce; nevertheless, the federal statute applies. As stated in Saunders v. Boston & Maine Railroad, supra, 287 Mass. on page 59, 191 N.E. on page 382: "In Philadelphia & Reading...