Foley v. Hines, Dir. Gen. of Railroads

• Decision Date: 08 December 1920
• Citation: 111 A. 715
• Parties: FOLEY v. HINES, Director General of Railroads (PORTLAND TERMINAL CO.).
• Court: Maine Supreme Court

111 A. 715

FOLEY

v. HINES, Director General of Railroads (PORTLAND TERMINAL CO.).

Supreme Judicial Court of Maine.

Dec. 8, 1920.

Exceptions from Supreme Judicial Court, Cumberland County, at Law.

Action by Matthew Foley against Walker D. Hines, Director General of Railroads (Portland Terminal Company). Verdict for plaintiff, and defendant brings exceptions and moves to set aside the verdict. Motion and exceptions overruled.

Argued before CORNISH, C. J., and SPEAR, HANSON, MORRILL, and WILSON, JJ.

Richard E. Harvey and William H. Looney, both of Portland, for plaintiff.

Charles B. Carter, of Lewiston, for defendant.

CORNISH, C. J. On August 14, 1918, the plaintiff, an employe of the Portland Terminal Company, sustained injuries while at work "trimming coal" in the hold of a vessel at the company's wharf in the city of Portland. The jury rendered a verdict in his favor in the sum of $9,120.75, and the case is before the law court on defendant's exception to the refusal of the presiding justice to direct a verdict for the defendant and on a general motion to set aside the verdict. The reasons assigned for asking for a directed verdict are two: First, because the plaintiff has failed to show actionable negligence on the part of the defendant; and, second, because he came within the provisions of the federal Employers' Liability Act, and the defense could therefore avail itself of the plaintiff's assumption of risk, which it claimed had been fully proven.

The writ contains several counts at common law, and also one invoking the provisions of the state Workman's Compensation Act (R. S. c. 50). The legal rights of the parties as modified by that act will be considered later.

1. Federal Employers' inability Act.

The first inquiry that naturally arises is whether this case falls within the provisions of the federal Employers' Liability Act of April 22, 1908 (U. S. Com. Stat. vol. 8,

8057-8665). If it does, then the plaintiff's assumption of risk and contributory negligence in reduction of damages are open to the defendant, unless the injury was caused through the violation of some statute enacted to promote the safety of employes. No such statutory violation being claimed here, those defenses would be available. Seaboard Air Line v. Horton. 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915 C, 1. Ann. Cas. 1915 B, 475; Jacobs v. Southern Railway Co., 241 U. S. 229, 36 Sup. Ct. 588, 60 L. Ed. 970; Chicago, etc., R. R. Co. v. Ward, 252 U. S. 18, 40 Sup. Ct. 275, 64 L. Ed. 430.

The essential words of section 8657 are these:

"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. * * * "

Two facts must coexist in order to bring a case within this provision: First, the injury must be sustained while the carrier is engaged in interstate commerce; and, second, the employe must, at the very moment of the accident, be employed in, and the particular service rendered must be a part of, such commerce. Mere employment by an interstate carrier is not sufficient to meet the second requirement, and, on the other hand, the employe need not be regularly and continuously engaged in interstate work. The same workman on different days or on different hours of the same day may be engaged in interstate and intrastate work, and be may pass from one to the other frequently, so that at one period he may be within and at another he may be without the scope of the act. N. Y. Central R. R. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298.

The facts in the case that must furnish the answer to this first inquiry are uncontroverted.

The defendant is a company which owns and operates certain railroad property formerly owned by the Maine Central Railroad Company and Boston & Maine Railroad, situated in Portland, Westbrook, South Portland, and that vicinity. It also owns wharf property on the shore front in Portland harbor, with all the necessary fixtures and appliances for discharging coal from vessels or barges. On the day of the accident the company's employes, among whom was the plaintiff, were engaged in discharging a cargo that had come by the steamer Louise from Baltimore, Md., the consignor being the Consolidation Coal Company, and the consignee the Maine Central Railroad Company. The steamer docked on Wednesday morning, August 14, and finished discharging on Friday morning, August 16. Foley was injured on Thursday August 15. The Terminal Company had nothing to do with the buckets carrying the coal from the hold of the steamer into railroad cars on the wharf and part onto the pile located on the wharf. The Maine Central Railroad Company, the consignee, took charge of the cars and distributed them where it wished. This cargo of about 2,900 tons was distributed as follows: To Deering Junction, Me., about 440 tons; Thompson's Point, Me., about 945 tons; North Conway, N. H., about 86 tons; Ricker Hotel Company, Rockland, Me., about 43 tons; Ricker Hotel Company, Kineo, Me., about 16 tons, while the balance, about 1,398 tons, or nearly one-half of the entire cargo, was left in a pile on the wharf. The coal shipped to Deering Junction and North Conway would be stored there, and ultimately be used by both interstate and intrastate locomotives; that shipped to Thompson's Point, for use in the locomotive and car repairs belonging to the terminal company, where both interstate and intrastate equipment was repaired; what use would be made of that shipped to the Ricker Hotel Company is not shown, but presumably by that company in connection with its hotels at Rockland and Kineo; while the large portion left in the pile on the wharf was ultimately to be used as fuel by both interstate and intrastate locomotives of the Maine Central Railroad, Boston & Maine Railroad, and Portland Terminal Company, as they might have occasion to coal there.

The plaintiff was one of the crew in the hold of the steamer employed in discharging this coal at the time of the accident.

Did these couditions bring him within the provisions of the act in question? We have no hesitation in answering that question in the negative.

It should be borne in mind that the fact that the plaintiff was engaged in discharging coal from a steamer which had brought it from Baltimore, Md., to Portland, Me., and therefore was in that sense engaged in interstate commerce, is entirely immaterial. That steamer was not owned by the defendant, and formed no part of its system, and the federal act applies only to "a common carrier by railroad." The Pawnee (D. C.) 205 Fed. 333.

The transportation to be considered here therefore is not concerned with the past, but with the future, not with the ending of a voyage, but the beginning of a shipment.

The plaintiff concedes in argument that defendant at the time of the accident was a common carrier by railroad within the meaning of the act, and was engaged in interstate commerce.

The issue is therefore narrowed to this: Was the plaintiff in doing this particular work at that time employed in such commerce? The test laid down by the Supreme Court of the United States on this point is that the employe at the time of the injury must be employed in interstate transportation or in work so closely related to it, or in an act so directly and immediately connected with it, as substantially to form a part or necessary incident thereof. N. Y. Cen. R. R. Co., v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298; Shanks v. Delaware, etc., R. R. Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916 C, 797.

There is little difficulty in deciding whether the statute applies in a case of direct employment, as, for instance, to a conductor, engineer, or brakeman while actually employed in running an interstate train. The difficulty arises when we are asked to determine cases where the act or the work is connected with one of the many instrumentalities without which interstate transportation could not be carried on. In deciding cases in this broad domain the courts are governed by the reasonable and firmly established principle, that in order for instrumentalities such as tracks, bridges, engines, or cars, to be regarded as engaged in interstate commerce, they must already have been devoted to such use and impressed with such interstate character. If so, the fact that they are also used for intrastate traffic does not destroy their interstate character. They need not be exclusively used for interstate work, but they must have been impressed with the interstate character. A vital distinction exists here, which must not be overlooked. Tracks roadbed, bridges, buildings, are instrumentalities in the nature of fixtures, and, once having been devoted to interstate commerce they remain so during their use as such, although also used in connection with intrastate traffic. But if these instrumentalities have not as yet become impressed with an interstate character, then the mere fact that at some future time they may be or are intended to be devoted to such use does not bring them within the act. To illustrate the foregoing principles: The following cases have been held to be within the act: An employe engaged in sealing up and labeling both interstate and intrastate cars (St. Louis etc., R. R. Co. v. Seale, 229 U. S. 158, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914 C, 156); yard clerk making record of incoming and outgoing interstate and intrastate cars (Pittsburg R. R. Co. v. Farmers' Trust Co., 183 Ind. 293, 108 N. E. 108); member of construction crew operating steam shovel in removing earth from interstate tracks (Tralich v. Chicago, etc., Ry. Co. [D. C.] 217 Fed. 677); section hand sweeping snow from tracks used for both interstate and intrastate tracks (Hardick v. Wabash R. R., 181 Mo. App. 160, 168 S. W. 328); repairing telegraph lines used in directing...