Philadelphia, B. & W.R. Co. v. Smith
| Decision Date | 27 February 1918 |
| Docket Number | 6. |
| Citation | 103 A. 945,132 Md. 345 |
| Parties | PHILADELPHIA, B. & W. R. CO. v. SMITH. |
| Court | Maryland Court of Appeals |
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, URNER, STOCKBRIDGE and CONSTABLE, JJ.
Henry R. Lewis, of Denton, for appellant.
T. Alan Goldsborough, of Denton, for appellee.
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 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 A. 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 ate, 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 v. Northern Pac. Ry. Co. 52 Mont. 578, 160 P. 654; Killes v. Great Northern Ry. Co., 93 Wash. 416, 161 P. 69; Shanks v. Delaware & L. R. R. Co. 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C, 797; Chicago, etc., R. R. Co. v. Harrington, 241 U.S. 177, 36 S.Ct. 517, 60 L.Ed. 941; and Delaware, etc., R. R. Co. v. Yurkonis, 238 U.S. 444, 35 S.Ct. 902, 59 L.Ed. 1397.
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 employé 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 employé 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:
In the Yurkonis Case the plaintiff was injured while he was preparing to mine coal in a mine or colliery owned by the defendant, and the court said:
"The injury happening when plaintiff was preparing to mine the coal was not an injury happening in interstate commerce, and the defendant was not then carrying on interstate commerce."
The decisions referred to and relied on by the appellant rest upon the theory that the work in which the plaintiff was engaged was not so closely related to interstate commerce as to be practically a part of it, and are readily distinguished from the case at bar. Here the bridge carpenters were employed in repairing the bridges of the defendant which were necessary for the maintenance of its road and the conduct of interstate commerce in which the defendant was then engaged. The work done by the plaintiff, and for which he was employed by the defendant, was in furtherance and aid of the work performed by the carpenters. He was a member of the gang, and subject to the control of the boss of the gang, and was performing his duties on the property of the defendant, and in a car furnished by the defendant as one of the instrumentalities engaged in the maintenance of its road, and we think the case falls clearly within the reasoning and principle applied in Pedersen v. Del., Lack: & West. R. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153. In that case the court said:
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