Louisville & N.R. Co. v. Carter

• Citation: 70 So. 655,195 Ala. 382
• Decision Date: 16 December 1915
• Docket Number: 185
• Court: Supreme Court of Alabama
• Parties: LOUISVILLE & N.R. CO. v. CARTER.

70 So. 655

195 Ala. 382

LOUISVILLE & N.R. CO. v. CARTER.

No. 185

Supreme Court of Alabama

December 16, 1915

Appeal from Circuit Court, Escambia County; A.E. Gamble, Judge.

Action by Frank Carter against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Gardner J., dissenting in part.

Boyles & Kohn, of Mobile, and Leigh & Leigh, of Brewton, for appellee.

McCLELLAN J.

The plaintiff (appellant) was permanently injured in consequence of being hit in the left eye by a piece of metal that was chipped off of a steel or iron bar with a cold chisel and a hammer in the hands of one Baumgartner, then in the service of the appellee in the repair of the grate bars in a locomotive. The action is to recover damages for this injury.

Count 8 of the complaint as amended sought to fasten liability on the company under the federal Employers' Liability Act. The general affirmative charge as to count 8 was given the jury at defendant's request, and evidently upon the theory that at the time the plaintiff was injured he was not engaged in interstate commerce. But for the consideration to be stated, this court would be disposed to thus respond to the appellant: Having moved the court to such a conclusion, and invoked the jury's instruction against the right to recover as upon the theory that the plaintiff was injured while serving in the promotion of interstate commerce, the defendant cannot be heard to urge error because of the refusal of instructions against the plaintiff's right to recover under counts 14 and 15, drawn under the state Employers' Liability Act, upon the inconsistent theory that he was injured while engaged in service within the influence of the federal Employers' Liability Act. L & N.R.R. Co. v. Holland, 173 Ala. 657, 697, 55 So. 1001; Clarke v. Dunn, 161 Ala. 633, 639, 50 So. 93; Shelton's Case, 73 Ala. 5; Leonard's Case, 66 Ala. 461. But the consideration before mentioned forbids recourse to the wholesome rule just restated, and for these reasons: The federal Employers' Liability Act supersedes a state enactment in that field and governs exclusively all cases falling within its influence (Ex parte A. Coast Line R. Co., 67 So. 256); and, if an employé is injured under circumstances subjecting his claim for damages to the control of the exclusive authority of the federal enactment, he cannot properly recover therefor on a count or counts declaring as for liability under the state Employers' Liability Act (Ex parte A. Coast Line R. Co., supra); and so, when the defendant here requested general affirmative instructions, in its favor, with respect to counts 14 and 15, drawn as they are to state a cause of action under the state Employers' Liability Act, it raised the inquiry, without regard to count 8, whether the plaintiff was, when injured, in the service of interstate commerce, and if, under the whole evidence, it indisputably appeared that he was in the interstate service when injury overtook him, the defendant would have been entitled to have the jury instructed against a recovery under the counts declaring on a liability that, without the intervention of the federal enactment, might have been available to him.

The plaintiff was engaged when injured in helping a machinist repair a locomotive of the defendant that had been more recently employed in the repair or employment of the main line of the defendant's railway, in this state, connecting Cincinnati, Ohio, and New Orleans, La.--a line that was used for the transportation of both intrastate and interstate commerce. The locomotive (No. 1244) undergoing the repair had very recently theretofore been regularly used in drawing between Mobile and Montgomery, in Alabama, a regular through interstate freight train that was made up at New Orleans and destined for Cincinnati. It became or was deficient for that service; and, when the locomotive and train reached Flomaton on the regular run, another locomotive was substituted to take the interstate train on north. The engine in question (No. 1244) was after its withdrawal from its accustomed service promptly put to the use of drawing cars in Alabama only, in a work train then engaged in filling a washout in the main interstate line of the defendant near Flomaton. It was desired to repair the grate or side bars of the engine; and the mechanic, Baumgartner, was brought from Mobile to make the repairs. The necessary materials to effect the repairs came at night when the engine was at rest from the work train service in which it had been used the day previous to that night and in which service it was continued the day succeeding the night during which the repairs were being made, when the plaintiff was injured.

The federal Employers' Liability Statute is only applicable or available to the employés it prescribes and defines, viz., those in the employment of interstate carriers who at the time of the injury are engaged in work or service immediately related, directly contributory to interstate commerce. Such relation exists not only when the injured employé's service was in or about the act of transporting persons or things, but also when his service was in or about the maintenance or repair of agencies already devoted to or immediately capable of facilitating some essential feature of interstate commerce. The repair of a track over which interstate commerce is being, or is to be, moved in the usual course of the carrier's business is an instrumentality of such commerce; and an employé of all interstate carrier who is engaged, when injured, in a service immediately productive of the maintenance or repair of intimately connected and essential, indispensable features of interstate commerce is within, and his rights are governed by, the federal statute. Pederson v. D., L. & W.R.R., 229 U.S. 146, 33 Sup.Ct. 648, 57 L.Ed. 1125, Ann.Cas.1914C, 153; Ruck v. C., M. & St. P. Ry. Co., 153 Wis. 158, 140 N.W. 1075, 33 Ann.Cas.1914C, pages 164-168. The purpose to devote in future an agency capable of use in interstate commerce to that service will not meet the condition of the statute, though physical preparation of the agency for immediate use in such commerce may suffice to invoke the provisions of the statute. North Car. R.R. Co. v. Zachary, 232 U.S. 248, 260, 34 Sup.Ct. 305, 58 L.Ed. 591, Ann.Cas.1914C, 159. The work in which this plaintiff was engaged when injury befell him was in the repair of an engine not in such use in or about interstate commerce as to allow it to be characterized as an instrumentality of that commerce or to be regarded as an immediately or directly applied means to the maintenance or repair of any indispensable feature of interstate transportation. The fact that the locomotive under repair was to be used, or even was being used, in the repair of the interstate track only brought it into a secondary relation to an interstate instrumentality, viz., the track. The work being done by the plaintiff was for the repair of the engine, and not in the repair of the track. This vital circumstance readily distinguishes Pederson v. D., L. & W.R., supra. There the injured employé's service was one in immediate direct relation to the maintenance or repair of an instrumentality of interstate commerce, viz., the railway itself. Here the service being performed was upon an agency that was not so immediately related to interstate commerce as to justify its characterization as a part of the interstate service. The trial court expressed this view through its action in giving, at defendant's instance, the affirmative charge as to the eighth count. The plaintiff's right of action was under the state Employers' Liability Statute. Hence the defendant was not entitled to have a recovery forbidden as upon the counts (14 and 15) drawn to state a cause of action under the state statute, on the theory that the federal statute alone applied and governed the matter.

Through a recent deliverance made in response to writ of error procured by the railway company to the Supreme Court of Wisconsin (C. & N.W. Ry. Co. v. Gray, 237 U.S. 399 35 Sup.Ct. 620, 59 L.Ed. 1018) the Supreme Court of the United States declined to express an opinion on the question whether or not the trial court should have found that the injured employé was engaged in interstate commerce, where the error, if any, did the appellant, railway company, no harm; the court...