Phillips v. Baltimore & O. R. Co.

• Decision Date: 22 November 1926
• Docket Number: 126
• Citation: Phillips v. Baltimore & O. R. Co., 135 A. 102, 287 Pa. 390 (Pa. 1926)
• Parties: Phillips, Appellant, v. Baltimore & Ohio R.R
• Court: Pennsylvania Supreme Court

135 A. 102

287 Pa. 390

Phillips, Appellant, v. Baltimore & Ohio R.R

No. 126

Supreme Court of Pennsylvania

November 22, 1926

Argued October 4, 1926

Appeal, No. 126, March T., 1926, by plaintiff, from judgment of C.P. Lawrence Co., June T., 1924, No. 95, on verdict for defendant n.o.v., in case of Norman E. Phillips v. Baltimore & Ohio Railroad Co. Affirmed.

Trespass for personal injuries under Federal Employer's Liability Act. Before HILDEBRAND, P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $5,500. Plaintiff appealed.

Error assigned was in entering judgment for defendant n.o.v quoting record.

The judgment is affirmed.

James A. Chambers, for appellant.

Wylie McCaslin, for appellee, was not heard.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

PER CURIAM:

Plaintiff sued under the Federal Employers' Liability Act for damages arising from injuries sustained by him while in defendant's employ. A verdict was rendered for plaintiff but the court below entered judgment for defendant n.o.v., on the ground that plaintiff had not shown that he received his injuries while engaged in interstate commerce; hence this appeal.

The accident occurred while plaintiff was engaged in rearranging and remodeling bins in a stock house belonging to defendant. This structure and the bins in it were used for the storage of small materials and parts to be employed from time to time in the repair of defendant's tracks, locomotives and rolling stock, whether engaged in interstate or intrastate commerce. Unless it can be held on these facts that plaintiff was engaged in interstate commerce at the time of his injuries, he cannot recover under the Federal Liability Act.

The United States Supreme Court has said that, "the true test of employment in [interstate] commerce in the sense intended [by the act] is, was the employee 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?": Shanks v. D., L. & W.R.R. Co., 239 U.S 556, 558. Applying this test to the present case, it cannot be ruled that plaintiff was so engaged; he was altering bins in a storage house, and the relation of this work to interstate commerce was remote at best, -- too remote to be "practically part of it." See Shanks v. D., L. & W.R.R. Co., supra; C., B. & Q.R.R. Co. v....