Hester v. East Tennessee & W.N.C.R. Co.

• Decision Date: 05 December 1918
• Docket Number: 1659.
• Citation: 254 F. 787
• Parties: HESTER v. EAST TENNESSEE & W.N.C.R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

254 F. 787

HESTER v. EAST TENNESSEE & W.N.C.R. CO.

No. 1659.

United States Court of Appeals, Fourth Circuit.

December 5, 1918

Mark W Brown, of Asheville, N.C. (J. W. Ragland, of Newland, N.C and Thomas A. Jones, of Asheville, N.C., on the brief), for plaintiff in error.

A. Hall Johnston, of Asheville, N.C., and John W. Price, of Washington, D.C. (James H. Epps, of Jonesboro, Tenn., and Price & Dulaney, of Washington, D.C., on the brief), for defendant in error.

Before KNAPP and WOODS, Circuit Judges, and ROSE, District Judge.

KNAPP Circuit Judge.

Plaintiff in error, plaintiff below, brought this action under the federal Employer's Liability Act (Act April 22, 1908, c 149, 35 Stat. 65 (Comp. St. Secs. 8657-8665)) to recover damages for the death of her husband, Charlie Hester, who was killed while in defendant's service in February, 1915. Upon the evidence adduced in her behalf the trial court directed a verdict for defendant, on the ground that Hester was not engaged in interstate commerce when he lost his life, and the correctness of that ruling is the only question to be decided.

Defendant operates a narrow gauge railroad running easterly from Johnson City, Tenn., to Cranberry, N.C., a distance of 34 miles. From Cranberry an affiliated road, known as the Linville River Railway, extends to Shulls Mills, N.C., a further distance of 24 miles. The only outlet for these lines is Johnson City, where connection is made with the Southern Railway and with the Carolina, Clinchfield & Ohio. A third rail has been laid from Johnson City to Elizabethton, Tenn., about 10 miles, and standard gauge cars can be transported to and from that point. At Cranberry there is a large output of iron ore, which moves in 'hopper' cars to Watauga Point, near Johnson City, where a smelting furnace is located.

Hester was a brakeman and one of the crew which operated a switch engine in the yard at Johnson City. On the day of the accident the regular freight train is said to have been 'off'-- that is, not running-- and this switching crew was called upon to move a number of cars with a switch engine to Blevins, Tenn., some 20 miles distant. They started out with 16 empty narrow gauge cars, and one standard gauge car, which was dropped at Elizabethton. Among the 16 cars were several hopper cars at the front end of the train. The switch engine was running backwards, and Hester had been sitting on the pilot beam facing the first car. Shortly before reaching Blevins he in some manner and from some cause fell from the engine under the cars, receiving the injuries from which he died not long afterwards. In order to get him quickly to a doctor, the rear cars were left at Blevins, and the engine with 6 or 7 hopper cars went on a few miles further to Roan Mountain, Tenn., near the North Carolina border. Six of these cars were taken to Cranberry the following morning by an engine and crew of the Linville Valley road, which came to Roan Mountain for that purpose and the same 6 cars were loaded with ore at Cranberry and hauled back to Watauga Point within the next three or four days. In short, the testimony indicates that there...