Philadelphia, B. & W. R. Co. v. McConnell

• Decision Date: 09 December 1915
• Docket Number: 1956.
• Citation: 228 F. 263
• Parties: PHILADELPHIA, B. & W.R. CO. v. McCONNELL.
• Court: U.S. Court of Appeals — Third Circuit

228 F. 263

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

No. 1956.

United States Court of Appeals, Third Circuit.

December 9, 1915

John Hampton Barnes, of Philadelphia, Pa., for plaintiff in error.

Owen J Roberts, of Philadelphia, Pa., and James D. Carpenter, Jr. of Jersey City, N.J., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

WOOLLEY Circuit Judge.

The question is whether the work the plaintiff was doing at the time of his injury was so related to interstate commerce as to bring him within the provisions of the Federal Employers' Liability Act of April 22, 1908, c. 149, 35 Statutes at Large, 65.

The plaintiff was assistant foreman of a gang on one of the defendant's work trains. The main business of the work train and its gang was to deliver supplies for repair and maintenance of the four track roadway or main line of the defendant company from a point in Pennsylvania to a point in Delaware, and by removing and carrying away used and discarded materials, to keep clear and clean its tracks and roadbed. A few days before the injuries to the plaintiff, the work train in question had taken new rails to a place where a track was to be repaired. The old rails were removed and the new ones installed. On the day the plaintiff was injured, the same train and gang were engaged in removing the old rails from where they had been left between the tracks. Travel over the roadbed of the defendant company at this point is very heavy, and interstate and intrastate trains pass over all the tracks every few minutes. While the plaintiff was on a car in the performance of his duties, members of the car in such a manner that vision of the foreman, threw a rail upon the car in such a manner that one end projected beyond the side of the car and was struck by a passing train and thrust against the plaintiff, causing him the injuries of which he complains.

The errors assigned are two:

1. The refusal of the court to direct the jury that, under all the evidence, the verdict must be for the defendant.

2. The refusal of the court to direct the jury to render a verdict for the defendant, upon the ground that the plaintiff was not entitled to recover under the Federal Employers' Liability Act.

With respect to the first error assigned, we may briefly say that, as there was a conflict of testimony as to what had occurred, the question of negligence was for the jury. Whether under the second assignment, the case was for the jury, or whether error was committed in refusing to withdraw it from the jury, depends upon whether the plaintiff, at the time of his injury, was employed in interstate commerce.

In order to determine this question, we must ascertain the nature of the work in which the plaintiff was employed with respect to the commerce to which it related, and as his injury was the result of negligence of a fellow servant, which is a risk from the assumption of which he is relieved only by the Federal Employers' Liability Act when it applies, we must inquire whether the work the plaintiff was doing at the time of his injury was within the contemplation of that act.

The right to recover arises only where the injury is suffered while the carrier is engaged in interstate commerce and while the employee is employed by the carrier in such commerce. Pedersen v. D.L. & W.R.R. Co., 229 U.S. 146, 150, 33 Sup.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153. There is no question that the defendant was engaged in interstate commerce. Therefore, we are concerned only with the nature of the work in which, at the time, the plaintiff was employed. That work was in connection with an instrumentality of commerce then and theretofore constantly, though not wholly,...