Glunt v. Pennsylvania Railroad Company

• Decision Date: 17 May 1915
• Docket Number: 173
• Citation: 249 Pa. 522,95 A. 109
• Parties: Glunt v. Pennsylvania Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

95 A. 109

249 Pa. 522

Glunt v. Pennsylvania Railroad Company, Appellant

No. 173

Supreme Court of Pennsylvania

May 17, 1915

Argued April 20, 1915

Appeal, No. 173, Jan. T., 1915, from judgment of C.P. Blair Co., March T., 1915, No. 67, on verdict for plaintiff in case of Walter F. Glunt v. Pennsylvania Railroad Company. Affirmed.

Trespass to recover damages for personal injuries.

The facts appear in the following opinion of BALDRIGE, P.J., sur defendant's motion for a new trial and for judgment n.o.v.

The plaintiff was employed by the defendant company as a signal repairman. In that capacity he was sent, on the 4th day of December, 1912, to a point just west of Birmingham, where the defendant company maintains and operates three tracks, all used in interstate commerce. The plaintiff was engaged in drilling holes in the ends of the rails, for the purpose of bonding them together, on the north track, known as track No 3. He was in company of a fellow employee, but without any foreman, the latter having joined the rest of the gang which was working at another point on the defendant company's road. Information had been given the plaintiff by his foreman that the middle track, known as track No. 2, would be used on the day in question for east-bound trains only. Shortly after 10 o'clock in the morning, while plaintiff was engaged in operating his drill, a freight train approached on track No 3. The plaintiff, upon observing the train began to unfasten his drill from the south rail, to which it was attached. When the drill was released the train was so close to the plaintiff, according to his testimony, that he concluded it would be dangerous to cross over track No. 3, upon which he was working, to the embankment, and, therefore, stepped on track No. 2. While standing on this track, waiting for the freight train to pass, and without receiving any notice or warning, a passenger train, west-bound, running at a high rate of speed, struck plaintiff, and injured him.

This action was brought under the Act of Congress of April 22, 1908, 35 U.S. Stat. 65, c. 149, known as the Federal Employers' Liability Act, which provides that any common carrier shall be liable in damages to any person suffering injury while he is employed by such carrier in interstate commerce . . . resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, tracks, road-bed, etc.

The question of the negligence of the defendant was submitted to the jury, and a verdict was found in favor of the plaintiff.

A motion was made by the defendant company to enter judgment n.o.v., and if that motion was refused that a new trial be granted.

The defendant company contends that it is not liable because --

(1) The plaintiff was not engaged in interstate commerce.

(2) He was not injured while engaged in interstate commerce.

(3) There was an assumption of risk.

The plaintiff was engaged in bonding the rails together with copper wires, in connection with the installation of a new and incomplete automatic electric signal system.

It is contended in support of the first proposition that the plaintiff was not employed on any instrumentality used in interstate commerce. In support of this proposition we are referred to the case of Jackson v. Chicago, Milwaukee & St. Paul Ry. Co., 210 Federal Reporter 495. The plaintiff therein was engaged in the construction of an incompleted tunnel, which was to be used by the defendant company in interstate commerce. The court held that there could be no recovery, as the tunnel was not used in the transporting of interstate commerce.

Also Bravis v. Chicago, Milwaukee & St. Paul Ry. Co., 217 Federal Reporter 234. The plaintiff was engaged in the construction of a bridge which was some 600 feet distant from the railroad, on a cut-off, which had never been provided with rails or used as a railroad. In an action to recover for injury the court held that the evidence did not sustain the allegation that the plaintiff was injured while engaged in interstate commerce.

It will be noticed that in these two cases no instrumentality nor construction, nor any part thereof, had been or was used or engaged in interstate commerce.

The case at bar differs from the foregoing line of authorities. It is true the signal system at this time was not in operation, but the rail in which the holes were being drilled was part of the roadbed which at the time of the injury was used in interstate commerce. The rail was to be utilized in connection with the new signal system, but it also entered into and formed a part of the roadbed. The fact that ultimately this rail's use was to be enlarged and its efficiency made greater did not deprive it of being used as an instrumentality in interstate commerce at that time.

In the case of Pederson v. Delaware, Lackawanna & Western R.R. Co., 229 U.S. 146, the plaintiff was employed in connection with repairing a bridge used in both interstate and intrastate commerce. While crossing a temporary bridge, used in place of the bridge being repaired, carrying a sack of bolts or rivets to be used in the bridge, he was injured. The court held that the act under discussion would not apply before the track equipment, etc., had become an instrumentality, but work done on an instrumentality during its use makes it applicable. Mr. Justice VANDEVENDER says, "True, a track or bridge may be used in both interstate and intrastate commerce, but when it is so used it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in the repair or in keeping it in suitable condition for use from being an employment in interstate commerce."

We are of the opinion that the plaintiff was engaged in work in connection with interstate commerce.

The defendant further contends that even though the plaintiff had been engaged in interstate commerce work, that he was not injured while he was thus engaged; that he had ceased his activities and stepped from the place he was working to another track. This is a too narrow and strained interpretation, and is not borne out by sound reasoning nor judicial authority.

The case of Illinois Central R.R. Co. v. Behrens, cited by defendant, does not support that contention. In that case the plaintiff was a foreman and was injured in a head-on collision at a time when ...