Director General of Railroads v. Bennett

• Decision Date: 12 November 1920
• Docket Number: 2584.
• Parties: DIRECTOR GENERAL OF RAILROADS v. BENNETT. [1]
• Court: U.S. Court of Appeals — Third Circuit

268 F. 767

DIRECTOR GENERAL OF RAILROADS v. BENNETT. ^[1]

No. 2584.

United States Court of Appeals, Third Circuit.

November 12, 1920

Wm Clarke Mason, of Philadelphia, Pa., for plaintiff in error.

Frank F. Davis and John C. Oldmixon, both of New York City, for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

Bennett engineer of a yard engine, employed in shifting service of a railroad engaged in both interstate and intrastate commerce hauled a train of interstate cars to its destination in the railroad yard. This terminated all service in connection with the train. The eight hour day of the shifting crew having ended, or being about to end, the next movement of Bennett and his engine was toward the roundhouse, there to receive orders, if any, to be carried out on overtime; or, lacking orders, to discharge the crew and house the engine. In making this movement, the edge of a car on an adjoining track struck and tore away the safety valve of the engine. Bennett died from injuries sustained from escaping steam. In this suit brought by his administratrix under the Federal Employers' Liability Act (Comp. St. Secs. 8657-8665), judgment was entered on verdict in her favor. The defendant sued out this writ of error.

By the first question brought here for review, the validity of the judgment is challenged on the ground that the plaintiff failed to prove the engagement of both employe and carrier in interstate commerce at the time of the injury as required by the Act. Second Employers' Liability Cases, 223 U.S. 1, 55, 32 Sup.Ct. 169, 56 L.Ed. 327, 38 L.R.A.(N.S.) 44; St. Louis & San Francisco Ry. Co. v. Seale, 229 U.S.

156, 158, 33 Sup.Ct. 651, 57 L.Ed. 1129, Ann. Cas. 1914C, 156; Illinois Central R.R. Co. v. Behrens, 233 U.S. 473, 478, 34 Sup.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163; Murray v. P., C., C. & St. L.R.R. Co., 263 Pa. 398, 107 A. 21. Assuming that the double aspect of the Federal question is raised by the assignments of error, its answer depends on the character of commerce in which the employe was employed and in which the engine as an instrumentality of commerce was engaged at the time of the injury. Neither one nor the other was at the time actually engaged in moving commerce of any kind, for the engine was moving light; but the movement in which both were involved may have been a necessary incident to commerce of one kind or the other, and if so, the movement partakes of the character of the commerce to which it relates.

Considering the question as it bears on the employment of the engineer, it was shown that he was either on his way home after a movement of interstate traffic or on his way to a place at which he might receive orders for further movements, either interstate or intrastate. The interstate movement just completed was not shown to have been merely a yard shifting movement as in Murray v. P., C., C. & St. L.R.R. Co., supra, but was, so far as the evidence discloses, a movement in actual furtherance of interstate commerce. Putting out of view the remote possibility of future employment as not determinative of the character of his work at the time of his injury (Minneapolis & St. Louis R.R. Co. v. Winters, 242 U.S. 353, 357, 37 Sup.Ct. 170, 61 L.Ed. 358, Ann. Cas. 1918B, 54), the day's work of the engineer, so far as the evidence shows, had ended and his movement was homeward. An employe's 'trip through the yard to his engine in the morning,' has been held to be a necessary incident to his day's work and necessarily to partake of the character of that work. Erie R.R. Co. v. Winfield, 244 U.S. 170, 173, 37 Sup.Ct. 556, 61 L.Ed. 1057, Ann. Cas. 1918B, 662; Nor. Car. R.R. Co. v. Zachary, 232 U.S. 248, 34 Sup.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159. If the first train movement the decedent engineer was ordered to make in his day's work had been of an interstate train, the trip of the engine from roundhouse to train would for like reason have been an incident to interstate commerce, and if injured in making the trip, he would have been entitled to the protection of the Federal Employers' Liability Act. Similarly, on leaving his day's work, his last train movement having been of an interstate train, his movement homeward bound would be regarded as a necessary incident to the commerce he had just completed. Erie R.R. Co. v. Winfield, supra. On both reason and authority we are of opinion that when Bennett was injured while leaving his job at the end of the day, notwithstanding the movement might have been, but actually was not, interrupted by an order to proceed elsewhere on overtime, he was but discharging a duty of his employment in a manner necessarily incident to the interstate movement he had just completed.

The defendant maintains in the other aspect of the question, that it, the carrier, was not engaged in interstate commerce at the time of the injury because its engine, moving light, was not an instrumentality specifically assigned to interstate commerce, nor was it performing a service exclusively or directly connected with commerce of that kind. The character of the instrumentality with reference to commerce, like that of the employe, depends on whether it was a necessary incident to the commerce just concluded. If the engine, instead of going to the roundhouse to end its day's work, had started from the roundhouse to begin its day's work, and was directly on its way under orders to a movement in interstate commerce, the trip from roundhouse to traffic would without doubt have been a movement necessarily incident to interstate commerce and so closely related to it as to have been practically a part of it. Erie R.R. Co. v. Winfield, supra; Nor. Car. R.R. Co. v. Zachary, supra; Pedersen v. D., L. & W.R.R. Co., 229 U.S. 146, 157, 33 Sup.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153. If, to use another illustration, the engine had left an interstate movement just completed and was on its way to another interstate movement...