Grigsby v. Southern Ry. Co.

• Decision Date: 04 March 1925
• Docket Number: No. 4083.,4083.
• Citation: 3 F.2d 988
• Parties: GRIGSBY et al. v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

3 F.2d 988 (1925)

GRIGSBY et al. v. SOUTHERN RY. CO.

No. 4083.

Circuit Court of Appeals, Sixth Circuit.

March 4, 1925.

W. T. Kennerly, of Knoxville, Tenn., for plaintiffs in error.

Charles H. Smith, of Knoxville, Tenn., for defendant in error.

Before DENISON and MACK, Circuit Judges, and ROSS, District Judge.

MACK, Circuit Judge.

The only contested question presented on this record in the trial court and in this court is whether or not the deceased, who was killed while acting as a freight brakeman for defendant, was at the time engaged in interstate transportation so as to bring the case within the federal Employers' Liability Act (Comp. St. §§ 8657-8665). The trial judge, after fully and accurately stating the pertinent facts and the basis for his deduction therefrom, directed a verdict for defendant. We summarize these facts as follows:

On the morning of the accident a train left Coal Creek, Tenn., with a caboose, 15 empty coal cars, and a car containing interstate merchandise, under orders to drop the loaded car destined for La Follette, Tenn., at Vasper, a junction point, to proceed on to Turley, Tenn., distributing the empty coal cars at several mines on the way, and to return in the afternoon from Turley, picking up between Turley and Vasper any loaded cars ready for shipment. The merchandise car was accordingly dropped at Vasper. Proceeding on with the empties, it became necessary at one point to switch some seven loaded coal cars in order to get the empties in place for the mines. At the time of the switching, four of these seven cars were billed intrastate; the other three were not yet billed. In the afternoon, however, these three were also billed — two intrastate and one interstate. This billing, however, was done after the original run to Turley had been completed.

During the switching operations, Grigsby was killed by the fall of a large lump of coal from one of the two cars that in the afternoon was billed intrastate, but that at the time of the accident had not yet been billed. On the return trip from Turley to Vasper the train picked up loaded coal cars, some billed interstate and some intrastate. It did not, however, pick up the two intrastate and the one interstate hereinabove referred to; these were picked up by some other train.

At Vasper, pursuant to orders then and there received, the engine in question again picked up the interstate merchandise car and certain empty coal cars, temporarily dropping the loaded coal cars which it had hauled from mines between Turley and Vasper on the return trip from Turley. It hauled the merchandise car and these empties to La Follette, and after delivering them there, again pursuant to orders then and there received, took loaded coal cars from La Follette, via Vasper, to Coal Creek, picking up again at Vasper the loaded coal cars that it had temporarily dropped there. But for the new orders received at Vasper on the return trip, and again at La Follette, neither the trip from Vasper to La Follette nor the return trip from La Follette would have been made.

Under the requirements of the Interstate Commerce Commission and pursuant to the forms adopted by it, the movements above described were reported as four distinct trips, from Coal Creek to Turley, from Turley to Vasper, from Vasper to La Follette, and from La Follette, via Vasper, to Coal Creek....