Philadelphia, B. & W. R. Co. v. Smith, No. 6.

CourtCourt of Appeals of Maryland
Writing for the CourtTHOMAS, J.
Citation103 A. 945,132 Md. 345
PartiesPHILADELPHIA, B. & W. R. CO. v. SMITH.
Decision Date27 February 1918
Docket NumberNo. 6.
103 A. 945
132 Md. 345

PHILADELPHIA, B. & W. R. CO.
v.
SMITH.

No. 6.

Court of Appeals of Maryland.

Feb. 27, 1918.


Appeal from Circuit Court, Caroline County; W. H. Adkins and Philemon B. Hopper, Judges.

"To be officially reported."

Action by Alfred H. Smith against the Philadelphia, Baltimore & Washington Railroad Company for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, THOMAS, LTRNER, STOCKBRIDGE, and CONSTABLE, JJ.

Henry R, Lewis, of Denton, for appellant. T. Alan Goldsborough, of Denton, for appellee.

THOMAS, J. This appeal is from a judgment recovered by the appellee against the appellant in the circuit court for Caroline county under the federal Employers' Liability Act. The original declaration contained several counts, to some of which, including the first count, the defendant demurred. The demurrer was overruled; but, as all the counts except the first were subsequently stricken out on motion of the plaintiff before the case was submitted to the jury, the first count is the only one to be considered.

The ruling of the court on the demurrer

103 A. 946

was made the ground of the first bill of exception. That ruling appears on the face of the record, and it was unnecessary and irregular to include it in the bill of exceptions. 2 Poe's P. & P. § 312, and cases cited in note; Expressmen's Ass'n v. Hurlock, 91 Md. 591, 46 Atl. 951, 80 Am. St. Rep. 470. The only remaining exception is to the granting of the plaintiff's first and second prayers.

Apart from certain objections to the form of the declaration and plaintiff's first prayer, to which we shall hereafter refer, the important ground of this appeal is that the averments of the declaration and the evidence in the case do not bring the plaintiff within the provisions of the act relied on. The defendant, the Philadelphia, Baltimore & Washington Railroad Company, operated a branch line of its railroad from the town of Clayton, in the state of Delaware to the town of Oxford, in the state of Maryland, over which it transported passengers and freight in interstate and intrastate commerce. The plaintiff was employed by the defendant as a "carpenter laborer," in connection with a gang of bridge carpenters employed by the defendant in the repair of its bridges and bridge abutments. The gang, including the plaintiff, worked over the entire line of the defendant, and were moved from point to point thereon, as the repair of the bridges and bridge abutments of the defendant required, in what was called a camp car, furnished and moved by the defendant, in which they are slept, and lived. The principal duties of the plaintiff were to taken care of the camp car, keep it clean, attend to the beds, and prepare and cook the meals for himself and the other members of the gang. On the 23d day of December, 1915, the bridge carpenters were engaged in repairing a bridge abutment of the defendant on its said line below Easton, Md., and the camp car was on a side track of the defendant at Easton, where it had been placed by the defendant, and was coupled at each end to a car of the defendant. On the day named, and while the plaintiff was engaged in the camp car in cooking dinner for the bridge carpenters and himself, the engineer of a train of the defendant, without any warning to the plaintiff, ran the engine on the side track and against the car to which the camp car was coupled with such force that it threw the plaintiff over a chair and against the door of a clothespress, inflicting the injuries for which he seeks to recover in this case.

That the injury complained of was caused by the negligence of the defendant seems to be conceded, but learned counsel for the appellant earnestly insists that the plaintiff was not, at the time he was injured, engaged in interstate commerce within the meaning of the federal statute. Among the cases he relies on are McBain Y. Northern Pac. Ry. Co. 52 Mont. 578, 160 Pac. 654; Killes v. Great Northern Ry. Co., 93 Wash. 416, 161 Pac. 69; Shanks v. Delaware & L. R. R. Co. 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797; Chicago, etc., R. R. Co. v. Harrington, 241 TJ. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941; and Delaware, etc., R. R. Co. v. Yurkonis, 238 U. S. 444, 35 Sup. Ct. 902, 59 L. Ed. 1307.

In McBain's Case the plaintiff at the time of his injury "was going from his caboose to the yard office to present a requisition for supplies needed upon the caboose whenever it should be called into service." But the train to which the caboose was to be attached had not been made up, and whether it would, when called into service, be attached to a train engaged in interstate or in intrastate commerce, had not been determined, and the court therefore held that it did not appear that the plaintiff, at the time he was injured, was engaged in interstate commerce. In Killes' Case the plaintiff was injured while building a scaffold to be used by him in painting a freight shed, and the court held that he was "not engaged in an act so directly and immediately connected with the interstate commerce as substantially to form a part [thereof] or necessary incident thereto." In Shanks' Case the court held:

"Where a railroad company, which is engaged in both interstate and intrastate transportation, conducts a machine shop for repairing locomotives used in such transportation, an employe is not engaged in interstate commerce while taking down and putting up fixtures in such machine shop."

In Harrington's Case the court said: "The switching crew of which Harrington was a member did not work outside of this state, and was engaged, at the time of his death, in switching coal belonging to defendant, and which had been standing on a storage track for some time, to the coal shed, where it was to be placed in bins or chutes and supplied, as needed, to locomotives of all classes, some of which were engaged or about to be engaged in interstate and others in intrastate traffic."

After quoting the statement in Shanks' Case, that "the true test of employment in such commerce in the sense intended is, Was the employe at the time of the injury engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?" the court said further:

"Manifestly, there was no such close or direct rel ttion to interstate transportation in the taking of the coal to the coal chutes. This was nothing more...

To continue reading

Request your trial
8 practice notes
  • Boyer v. Pa. R. Co., No. 48.
    • United States
    • Court of Appeals of Maryland
    • April 8, 1932
    ...would have been held engaged in interstate commerce within the meaning of the federal statute. Philadelphia, B. & W. R. Co. v. Smith, 132 Md. 345, 103 A. 945, affirmed Philadelphia B. & W. R. Co. v. Smith, 250 U. S. 101, 39 S. Ct. 396, 63 L. Ed. 869. However, the Supreme Court of th......
  • CHICAGO, M., ST. P. & PR CO. v. Kane, No. 5760.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 15, 1929
    ...Ohio R. Co. v. Whitacre, 124 Md. 411, 92 A. 1060; Id., 242 U. S. 169, 37 S. Ct. 33, 61 L. Ed. 228; Phila., B. & W. R. Co. v. Smith, 132 Md. 345, 103 A. 945; Id., 250 U. S. 101, 39 S. Ct. 396, 63 L. Ed. 869; Brock v. Chicago, Rock Island & P. R. Co., 305 Mo. 502, 266 S. W. 691, 36 A.......
  • Hurt v. Paredes, Case Number: 15703
    • United States
    • Supreme Court of Oklahoma
    • September 15, 1925
    ...Marton v. Pickrell (Wash.) 191 P. 1101; R. C. L. vol. 2, pages 237 and 238; and in the case of Phil., B. & W. R. R. Co. v. Smith, 132 Md. 345, 103 A. 945, the following statement is found: "A defeated party cannot complain that an instruction placed upon the successful party a burd......
  • Philadelphia Co v. Smith, No. 472
    • United States
    • United States Supreme Court
    • May 19, 1919
    ...injuries, to recover for which his action was brought. A judgment in plaintiff's favor was affirmed by the Maryland Court of Appeals (132 Md. 345, 103 Atl. 945), and the case comes here on a writ of certiorari. The only question we have to consider is whether plaintiff at the time he was in......
  • Request a trial to view additional results
8 cases
  • Boyer v. Pa. R. Co., No. 48.
    • United States
    • Court of Appeals of Maryland
    • April 8, 1932
    ...would have been held engaged in interstate commerce within the meaning of the federal statute. Philadelphia, B. & W. R. Co. v. Smith, 132 Md. 345, 103 A. 945, affirmed Philadelphia B. & W. R. Co. v. Smith, 250 U. S. 101, 39 S. Ct. 396, 63 L. Ed. 869. However, the Supreme Court of th......
  • CHICAGO, M., ST. P. & PR CO. v. Kane, No. 5760.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 15, 1929
    ...Ohio R. Co. v. Whitacre, 124 Md. 411, 92 A. 1060; Id., 242 U. S. 169, 37 S. Ct. 33, 61 L. Ed. 228; Phila., B. & W. R. Co. v. Smith, 132 Md. 345, 103 A. 945; Id., 250 U. S. 101, 39 S. Ct. 396, 63 L. Ed. 869; Brock v. Chicago, Rock Island & P. R. Co., 305 Mo. 502, 266 S. W. 691, 36 A.......
  • Hurt v. Paredes, Case Number: 15703
    • United States
    • Supreme Court of Oklahoma
    • September 15, 1925
    ...Marton v. Pickrell (Wash.) 191 P. 1101; R. C. L. vol. 2, pages 237 and 238; and in the case of Phil., B. & W. R. R. Co. v. Smith, 132 Md. 345, 103 A. 945, the following statement is found: "A defeated party cannot complain that an instruction placed upon the successful party a burd......
  • Philadelphia Co v. Smith, No. 472
    • United States
    • United States Supreme Court
    • May 19, 1919
    ...injuries, to recover for which his action was brought. A judgment in plaintiff's favor was affirmed by the Maryland Court of Appeals (132 Md. 345, 103 Atl. 945), and the case comes here on a writ of certiorari. The only question we have to consider is whether plaintiff at the time he was in......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT