Hallstein v. Pennsylvania R. Co.

• Decision Date: 08 February 1929
• Docket Number: No. 5093,5095.,5093
• Parties: HALLSTEIN v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

30 F.2d 594 (1929)

HALLSTEIN v. PENNSYLVANIA R. CO.

Nos. 5093, 5095.

Circuit Court of Appeals, Sixth Circuit.

February 8, 1929.

Lewis D. Houck, of Cleveland, Ohio (Payer, Minshall, Karch & Kerr, of Cleveland, Ohio, on the brief), for plaintiff in error.

Norman A. Emery, of Youngstown, Ohio (Harrington, DeFord, Huxley & Smith, of Youngstown, Ohio, on the brief), for defendant in error.

Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.

HICKENLOOPER, Circuit Judge.

The defendant railroad company was charged with the maintenance of a certain overhead highway bridge crossing its track in the city of Pittsburgh and known as the Herr's Island or Thirtieth Street bridge. The floor of this bridge had become in disrepair and was dangerous for public use, and plaintiff, as an employee of the defendant company, was engaged in loading plank into a railroad car to be hauled to the bridge for the repair of such floor. While so doing, plaintiff claims to have been injured by the negligence of other employees of the defendant similarly engaged. The action was brought under the Federal Employers' Liability Act (45 U. S. C. § 51 et seq.; 45 USCA § 51 et seq.), in a district of which neither plaintiff nor defendant was a resident. Upon trial a verdict was directed for the defendant upon the ground of lack of jurisdiction; that is, that the plaintiff was not, at the time of his injury, engaged in interstate commerce. No question is raised as to the propriety of directing such verdict, the jury having been sworn, rather than simply dismissing the action for want of jurisdiction. We therefore do not notice nor pass upon this question.

The general rule unquestionably is that, for the Federal Employers' Liability Act to apply and the jurisdiction of the federal courts to thereby attach, not only must the employer be engaged in interstate commerce but the employee at the time of the injury must likewise be engaged in interstate transportation or in work so closely related to it as to be practically a part of it. Shanks v. D., L. & W. R. Co., 239 U. S. 556, 36 S. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797; Industrial Accident Commission of State of California v. Davis, 259 U. S. 182, 185, 42 S. Ct. 489 (66 L. Ed. 888). Where work is being done by an employee upon or directly in connection with an instrumentality which itself is being used in interstate commerce and not withdrawn therefrom, such as tracks, bridges, water tanks and pumps connected therewith, locomotives or cars embarked or immediately about to embark upon such commerce, or undergoing running repairs, etc., the employee has been held to have been engaged in interstate commerce. Among the leading decisions so holding are Pedersen v. D., L. & W. R. Co., 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125; St. L., S. F. & T. Ry. v. Seale, 229 U. S. 156, 33 S. Ct. 651, 57 L. Ed. 1129; North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 S. Ct. 305, 58 L. Ed. 591; N. Y. Cent., etc., R. R. Co. v. Carr, 238 U. S. 260, 35 S. Ct. 780, 59 L. Ed. 1298; Pennsylvania Co. v. Donat, 239 U. S. 50, 36 S. Ct. 4, 60 L. Ed. 139; Southern Ry. Co. v. Puckett, 244 U. S. 571, 37 S. Ct. 703, 61 L. Ed. 1321, Ann. Cas. 1918B, 69; N. Y. Cent. R. R. Co. v. Porter, 249 U. S. 168, 39 S. Ct. 188, 63 L. Ed. 536; Phila., B. & W. R. R. Co. v. Smith, 250 U. S. 101, 39 S. Ct. 396, 63 L. Ed. 869; Kinzell v. C., M. & St. P. R. Co., 250 U. S. 130, 39 S. Ct. 412, 63 L. Ed. 893; Erie R. Co. v. Collins, 253 U. S. 77, 40 S. Ct. 450, 64 L. Ed. 790; Central R. Co. of N. J. v. Monahan, 11 F.(2d) 212 (C. C. A. 2); Clemence v. Hudson & M. R. Co., 11 F.(2d) 913 (C. C. A. 2); B. & O. R. Co. v. Kast, 299 F. 419 (C. C. A. 6).

On the other hand, where the instrumentality upon which the employee is at work or in connection with which he is engaged is not directly connected with interstate transportation, or where such instrumentality has been withdrawn from or not yet dedicated to use in such commerce, although it may last have been so used or be intended ultimately for such use, it has repeatedly been held that the work was not so closely related to interstate commerce as to be practically a part of it. Ill. Cent. R. R. v. Behrens, 233 U. S. 473, 34 S. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163; Shanks v. D., L. & W. R. R. Co., 239 U. S. 556, 36 S. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797; D., L. & W. R. Co. v. Yurkonis, 238 U. S. 439, 35 S. Ct. 902, 59 L. Ed. 1397; C., B. & Q. R. Co. v. Harrington, 241 U. S. 177, 36 S. Ct. 517, 60 L. Ed. 941; Raymond v. C., M. & St. P. R. Co., 243 U. S. 43, 37 S. Ct. 268, 61 L. Ed. 583; N. Y. Cent. R. Co. v. White, 243 U. S. 188, 33 S. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; Minneapolis & St. L. R. Co. v. Winters, 242 U. S. 353, 37 S. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54; Industrial Accident Commission of State of California v. Davis, 259 U. S. 182, 42 S. Ct. 489, 66 L. Ed. 888.

Applying these principles to the instant case, we are convinced that the District Court did not err in holding that the plaintiff was not engaged in interstate commerce. The lumber was not being moved for the repair of track, platform, appliance, or bridge which itself had ever been used as an instrumentality for interstate traffic movements. The Herr's Island or Thirtieth Street bridge in no way facilitated the interstate transportation except indirectly in eliminating a grade crossing. It is contended by counsel that, had the bridge not been repaired, wreckage might have fallen to the tracks beneath and thus have obstructed interstate commerce. Such argument entirely ignores the fact that at the time of the accident no necessity for work upon or the removal of wreckage from the tracks had arisen. The bridge was what it had always been, solely a part of the street and highway system of the city of Pittsburgh, entirely separated from all direct participation in or relation to the transportation moving beneath it. The connection with such commerce was at best indirect and remote.

The judgment is accordingly affirmed.

Having sufficiently recovered from injuries theretofore received as above stated, the plaintiff returned to employment with the defendant as an electrician. As such he was ordered to go to Avenmore and to install an electric light on the coal tipple there, to facilitate the coaling at night of engines that passed over the main line in interstate and intrastate commerce. He complained that he did not wish to do this work, because he had no safety belt and the work was dangerous without one. Accordingly another employee was detailed for the work, but was later relieved. Thereupon plaintiff was again ordered to complete the work, and upon his remonstrance he was told that he had his orders, the work would have to be done, and "if it is not done you...