Law v. Illinois Cent. R. Co.

• Decision Date: 04 November 1913
• Docket Number: 2,362.
• Citation: 208 F. 869
• Parties: LAW v. ILLINOIS CENT. R. CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

208 F. 869

LAW v. ILLINOIS CENT. R. CO. et al.

No. 2,362.

United States Court of Appeals, Sixth Circuit.

November 4, 1913

Dan F Elliotte and Bell, Terry & Bell, all of Memphis, Tenn., for plaintiff in error.

Albert W. Biggs and T. A. Evans, both of Memphis, Tenn. (Chas. N Burch and H. D. Minor, both of Memphis, Tenn., of counsel) for defendants in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

Plaintiff sued to recover for accidental injuries received while in the employ of the defendant companies. At the close of the testimony verdict was directed for defendants. The evidence tended to show the following:

Plaintiff was a 'boiler maker's helper' employed in defendants' shops in Memphis, Tenn. At the time of the accident he was helping the boiler maker, one Morgan, in repairing a 'petticoat' for a freight engine regularly employed by defendants in interstate commerce. For the purpose of fastening together two sheet-iron plates, a rivet was set on end under the overlap and a nut placed on top of the plates over the rivet. The boiler maker, in striking the nut for the purpose of driving the rivet through the plates, hit a glancing blow, whereby the nut flew and struck plaintiff in the eye. The grounds on which verdict was directed were (a) that plaintiff and Morgan were fellow servants, and (b) that plaintiff was not engaged in interstate commerce. Defendants contend here that there was no proof of negligence and that the direction should be sustained on that ground.

1. The contention that the proof did not tend to show that Morgan was negligent is without merit. The testimony is that the usual way of riveting plates of the character in question is to drill or punch a hole for the rivet before inserting it; but that in this case, by reason of hurry and to save time, the course stated was followed. The testimony had a tendency to prove negligence, without invoking the doctrine of res ipsa loquitur.

A variance between the declaration and the proof is suggested, in that the declaration alleges as ground of negligence the attempt to drive the hole through the metal with a cold rivet, when Morgan knew, or should have known, that this method was dangerous and improper; while the proof showed that the injury occurred because of the glancing blow which caused the nut to fly and strike plaintiff. This criticism is without point. If a variance existed (which we do not intimate), it is enough to say that no question of variance was raised upon the trial, that the alleged variance could have misled no one, and that, had it been suggested, it would have been the duty of the court to permit amendment. Pennsylvania Co. v. Whitney (C.C.A. 6th Cir.) 169 F. 572, 578, 95 C.C.A. 70.

2. Plaintiff claims a right of recovery both under defendants' common-law obligation and under the Second Employers' Liability Act. ^[1] Under the latter, Morgan's negligence would not bar action, for the act makes the negligence of a fellow servant the negligence of the defendants. Southern Ry. Co. v. Gadd, 207 F. 277, decided by this court May 6, 1913; Central Ry. Co. v. Young (C.C.A. 3d Cir.) 200 F. 359, 366, 118 C.C.A. 465. At common law, however, the negligence of the fellow servant bars recovery. Morgan was clearly plaintiff's fellow servant. The two employes were engaged in the same duties. The fact that Morgan was the boiler maker and plaintiff the helper does not alter the situation. Illinois Central R.R. Co. v. Hart (C.C.A. 6th Cir.) 176 F. 245, 247, 100 C.C.A. 49, and cases cited.

No case is presented of violation of nondelegable duty to provide a safe place to work. The place itself was safe. It was made unsafe only by the negligent operation of the fellow servant. See Railway Co. v. Hart, supra, 176 F. at pages 250 and 251, 100 C.C.A. 49. On the case presented, plaintiff was therefore not entitled to recover upon defendants' common-law obligation.

3. Was the plaintiff engaged in interstate commerce?

It is the well-settled rule that, in order to bring a railroad employe within the protection of the Employers' Liability Act, it is not necessary that he be directly engaged in train movements. As pointed out by Mr. Justice Van Devanter in Pedersen v. D., L. & W.R. Co., 229 U.S. 146, 152, 33 Sup.Ct. 648, 57 L.Ed. 1125, the true test is whether the work in which the employe is engaged is a part of the interstate commerce in which the carrier is engaged. As illustrating this proposition: In Norfolk & Western Ry. Co. v Earnest, 229 U.S. 114, 33 Sup.Ct. 654, 57 L.Ed. 1096, the employe whose recovery was affirmed suffered his injuries while piloting a locomotive (by walking in advance of it) through several switches in the railroad yards to a main track, where the locomotive was to be attached to an interstate train to assist in moving it up a grade in the direction of the next station. In St. Louis, S.F. & Texas R.R. Co. v. Seale, 229 U.S. 156, 33 Sup.Ct. 651, 57 L.Ed. 1129, a yard clerk, whose duties were to take the numbers of, seal up, and label cars, some of which were engaged in interstate and some in intrastate traffic, was held to be engaged in interstate commerce while on his way to the performance of his duties through the yards to one of the tracks therein, to meet an incoming train from another state. In Lamphere v. Oregon Ry. & Nav. Co., 196 F. 336, 116 C.C.A. 156, a locomotive fireman in the employ of an interstate railway company was held by the Circuit Court of Appeals of the Ninth Circuit to be engaged in interstate commerce while approaching a station at which he was to take a train for transportation to another station, to relieve the crew of an interstate train. In Illinois R.R. Co. v. Porter (C.C.A.) 207 F. 311, a trucker who received injuries through the negligence of a fellow trucker while loading a car for interstate transportation was held by this court to be engaged in...