Erie R. Co. v. Collins

• Decision Date: 30 January 1919
• Docket Number: 40.
• Citation: 259 F. 172
• Parties: ERIE R. CO. v. COLLINS. [1]
• Court: U.S. Court of Appeals — Second Circuit

259 F. 172

ERIE R. CO. v. COLLINS. ^[1]

No. 40.

United States Court of Appeals, Second Circuit.

January 30, 1919

Moot Sprague, Brownell & Marcy, of Buffalo, N.Y. (John W. Ryan, of Buffalo, N.Y., of counsel), for plaintiff in error.

Hamilton Ward, of Buffalo, N.Y. (Irving W. Cole, of Buffalo, N.Y., of counsel), for defendant in error.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

The plaintiff, when 17 years old, entered defendant's service in January, 1912, and for a time served as a ticket seller and night telegraph operator at a small village in the state of New York. On December 21, 1915, he was put in charge of a signaling tower and water tank. The tower was used for the operation of the interstate and intrastate trains of the defendant. The tank was used for the purpose of supplying water to the engines of such trains. It was the plaintiff's duty to report the trains as they went back and forth by the tower to the dispatcher in Buffalo. In case a train wanted to go on the siding, the dispatcher notified plaintiff to put the train on the siding and it was necessary for him to walk down the track 4 or 5 rods and throw the switch, and walk up the track about the same distance and throw another switch. The tower was equipped with telegraph and telephone instruments. About 25 freight trains a day took water at the water tank, and 7 or 8 engines exhausted the water which the tank held at any one time. The water in the tank came from a closeby well, being forced from it into the tank by a pump operated by a gasoline engine which the plaintiff ran.

The defendant claims that this action cannot be maintained because the plaintiff at the time of his injury was not employed in interstate commerce within the meaning of the federal Employers' Liability Act. This question must be first determined, for, if not within the act, the court below was without jurisdiction, and judgment must be reversed. The question was raised by a motion for a nonsuit at the close of plaintiff's case, which motion, having been denied, was renewed at the close of all the evidence, and again by defendant's request to charge; exceptions being duly taken.

The character of the plaintiff's employment at the time of his injury, whether interstate or intrastate, depends upon the character of the work in which he was at that time engaged. At the time of the injury the plaintiff was employed in pumping water from the earth into a tank 1,000 feet distant, from which it would flow into locomotives, some of which, as before indicated, were engaged in interstate commerce. After the water reached the tank, the work of taking it into the engines was done by the engine crews.

In Pedersen v. Delaware, Lackawanna & Western R. Co., 229 U.S. 146, 33 Sup.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153, the plaintiff was an iron worker employed by the defendant. At the time of his injury he was carrying a sack of bolts or rivets from a tool car to a bridge, to be used the next morning in work on the bridge. The court held that the plaintiff in that case was at the time of his injury engaged in work so closely related to interstate commerce as to be in practice and in legal contemplation a part of it. The point was made that the man was not at the time of his injury actually engaged in removing the old girder from the bridge and inserting the new one, but was merely carrying to the place where that work was to be done some of the materials to be used therein. This view of the matter the court declined to take saying:

'It was necessary to the repair of the bridge that the materials be at hand, and the act of taking them there was a part of that work.'

And so, in the case at bar, it was necessary to the operation of defendant's trains that the engines which haul its cars should be furnished with water, and the plaintiff, in the act of pumping the water into the tank which was to supply the engines, was, as in the Pedersen Case, carrying to the place where the engines were to be filled 'the materials to be used therein. ' And if the bolts not yet driven into the bridge, and not in the act of being driven in, are an instrumentality of interstate commerce, so is the water not yet put into the boilers of the locomotives, and not in the act of being placed therein, but which is in the act of being taken to where it is at once to be so used, and not on the next day, as in the Pedersen Case.

The defendant, however, relies on the case of Delaware, Lackawanna & Western Railroad Co. v. Yurkonis, 238 U.S. 439, 35 Sup.Ct. 902, 59 L.Ed. 1397. In that case the plaintiff at the time of his injury was engaged in preparing and setting off a charge of dynamite for the purpose of blasting coal and the explosive gases which had accumulated at the place where he was working suddenly ignited and exploded, and caused a squib attached to a charge of dynamite to catch fire and explode the dynamite, which caused the injuries for which the suit was brought. The plaintiff was employed in mining coal in the railroad company's colliery in the state of Pennsylvania, which coal was mined for use by it in the locomotives and engines used in its business as a common carrier in interstate commerce. The Supreme Court held that it conclusively appeared that the injury did not occur in interstate commerce. 'The mere fact,' said the court, 'that the coal might be or was intended to be used in the conduct of interstate commerce after the same was mined and transported did not make the injury one received by the plaintiff while he was engaged in interstate commerce. ' And in the case at bar it was urged at the argument that upon principle we must conclude that the plaintiff, who at the time of his injury was engaged as we have said in pumping water from the earth, has no closer relationship to interstate commerce than had the plaintiff in the above case, who was mining coal which might be used in interstate commerce. 'If a railroad company,' counsel argued, 'employed an engineer to pump water from the earth at a distance from its right of way, and transported the water by cars or a pipe line to a water tank upon its right of way, for use there upon engines engaged in interstate commerce, we would have a situation exactly like the one presented to the court in the Yurkonis Case.'

That is not a fair statement of the case. In the latter case the plaintiff had no interstate employment, but was employed simply in mining coal at the mines, the use of which in interstate commerce was neither certain nor immediate. In the case at bar the plaintiff had an interstate employment in caring for and operating a plant, consisting of a tower house and instrumentalities therein, and the pump and the engine and the tank, all of which were permanent instrumentalities of interstate commerce; and the water, unlike the coal being mined, was for immediate use in interstate commerce. In order that interstate commerce might be carried on, it was necessary that there should be a water tank, and that it should be kept supplied with water for the interstate engines, and that there should be a pump house and a pump and a gasoline engine for the purpose of keeping the tank supplied with water, without which the interstate engines could not continue their interstate functions. All these things were necessary incidents of the interstate commerce in which the defendant was engaged. The water tank, the pump house, the pump, and the gasoline engine, used for the purpose of keeping the water tank supplied with water, were, under the circumstances, just as essential to the practical operation of the defendant's interstate commerce business as the tracks over which its trains were propelled. In filling the water tank for the immediate use of locomotives engaged in interstate commerce, the plaintiff was engaged in work so closely related to interstate commerce as to be practically a part of it, and that is sufficient to bring the case within the terms of the federal Employers' Liability Act. Shanks v. Delaware, Lackawanna & Western R. Co., 239 U.S. 556, 559, 36 Sup.Ct. 188, 60 L.Ed. 436, L.R.A. 1916C, 797.

It is said that this case is ruled by the case of Chicago Burlington & Quincy Railroad Co. v. Harrington, 241 U.S. 177, 36 Sup.Ct. 517, 60 L.Ed. 941. In that case a wife brought the action to recover damages for the death of her husband, who was a member of a switching crew employed by the railroad company in its terminal yards at Kansas City, which is an important center for the handling of interstate and intrastate commerce, and where locomotives and cars used in both kinds of...