Pedersen v. Delaware, L. & W R. Co.

• Decision Date: 18 May 1912
• Docket Number: 1,479.
• Citation: 197 F. 537
• Parties: PEDERSEN v. DELAWARE, L. & W.R. CO.
• Court: U.S. Court of Appeals — Third Circuit

197 F. 537

PEDERSEN v. DELAWARE, L. & W.R. CO.

No. 1,479.

United States Court of Appeals, Third Circuit.

May 18, 1912

In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

Action at law by Martin Pedersen against the Delaware, Lackawanna &amp Western Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Bamberger Levi & Mandel, of Philadelphia, Pa., for plaintiff in error.

James F. Campbell, of Philadelphia, Pa., for defendant in error.

Before GRAY and BUFFINGTON, Circuit Judges, and YOUNG, District Judge.

BUFFINGTON Circuit Judge.

In the court below Martin Pedersen, a citizen of New Jersey, brought suit against the Delaware, Lackawanna & Western Railroad Company, a corporation of Pennsylvania, to recover damages for personal injuries sustained by him while its employe through its alleged negligence. His statement of claim alleged defendant was 'a common carrier of passengers and goods and was engaged in commerce between several of the states of the United States of America, including commerce between the states of New York, New Jersey, Pennsylvania, and other states,' and that he himself 'was in the employ of the defendant as an iron worker, and was working in and upon the erection and repair of certain railroad bridges for the said defendant on the 31st day of July, 1909, at or near the city of Hoboken, in the state of New Jersey, and was on said date and at said place employed by the defendant in such commerce between the states as aforesaid.'

At the trial the court refused defendant's motion for binding instructions, and there was a verdict for plaintiff. Subsequently the court, on motion of defendant and in pursuance of the Pennsylvania statute followed by the federal courts in that state, entered judgment non obstante veredicto in its favor. Thereupon the plaintiff sued out this writ. The case turns upon the construction of section 1, Act Cong April 22, 1908, which provides:

'That every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employe, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employe; and if none, then of such employe's parents, and if none, then of the next of kin dependent upon such employe, for such injury or death, resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.'

The pertinent facts of this case may, as said in the brief of the plaintiff--

'be stated in the language used in the opinion in the court below as follows: 'The defendant is a common carrier of freight and passengers by rail, and does an interstate and intrastate business. At the time of the plaintiff's injury, it was engaged in building an additional track near Hoboken, N. J. Part of this track was to be laid upon a bridge, and the plaintiff was hurt upon the uncompleted structure while carrying material from one part of the work to another. The verdict establishes the fact that the negligence of a locomotive engineer was one cause of the injury, and that the plaintiff, if negligent at all, was nevertheless entitled to receive a considerable sum. The new track when finished was intended for use both in local business and in commerce between the states, but the train by which the injury was inflicted was a purely local train running between two points in the state of New Jersey. The suit is brought under the Employer's Liability Act of 1908, and the question now to be decided is whether that statute affords any relief for an injury under the foregoing facts."

In view of the construction given this act in Mondou v. N.Y., N.H. & hartford Railroad Co., decided January 15, 1912, 223 U.S. 1, 32 Sup.Ct. 169, 56 L.Ed. 327, that 'the act embraces instances where the causal negligence is that of the employe engaged in intrastate commerce, for such negligence, when operating injuriously upon an employe engaged in interstate commerce, has the same effect upon that commerce as if the negligent employe were also engaged therein,' the fact that the injury was inflicted by an intrastate train is not material, and the case narrows to two questions which may be framed in the words of the statute: First. Do the foregoing facts show Pedersen was injured by the railroad 'while (it was) engaging in commerce between any of the several states'? Second. Was such injury sustained by him 'while he is (was) employed by such carrier in such commerce'? Addressing ourselves thereto, we note that the object of this act was to broaden the right to relief for damages suffered by railroad employes in interstate transportation, for the power of Congress to create such liability to such employes rests on the fact and acts of interstate transportation work which are being done both by the company and by the injured employe at the time of the injury. Mondou v. New York, etc., Co., supra, where it is said:

'The present act, unlike the one condemned in Employers' Liability Cases, 207 U.S. 463, 28 Sup.Ct. 141, 52 L.Ed. 297, deals only with the liability of a carrier engaged in

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