Rogers v. Canadian Nat. Ry. Co.
| Decision Date | 29 March 1929 |
| Docket Number | No. 107.,107. |
| Citation | 224 N.W. 429,246 Mich. 399 |
| Parties | ROGERS v. CANADIAN NAT. RY. CO. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, St. Clair County; William Robertson, Judge.
Action by Benjamin Rogers against the Canadian National Railway Company, a foreign corporation. Verdict for plaintiff. From a judgment non obstante for defendant, plaintiff brings error. Affirmed.
Argued before the Entire Bench. Walsh, Walsh & O'Sullivan, of Port Huron, for appellant.
H. R. Martin and Leo J. Carrigan, both of Detroit, and Don R. Carrigan, of Port Huron, for appellee.
This is an action, brought by an injured railroad employee, to recover damages under the Federal Employers' Liability Act (45 USCA §§ 51-59), and involves the question of whether plaintiff, at the time of injury, was engaged in interstate commerce in a practical sense. Such sense bars fiction and consideration of subsequent events, and embraces work so closely related to interstate transportation as to really constitute a part thereof. In the circuit court there was a verdict for plaintiff, with judgment non obstante for defendant.
Plaintiff reviews by writ of error, and defendant assigns errors not necessary to be considered, if the judgment is affirmed. Exhaustive briefs have been furnished, case law and text-books have been examined, and upon due consideration, we think plaintiff failed to establish the fact that, at the time he was injured, he was engaged in interstate commerce.
Plaintiff was a member of a switching crew engaged, at Port Huron, in moving to and placing cars of freight at manufacturing plants, and returning empty cars to the main railroad yard, where a yard switching crew later assembled cars for train movement under general, customary, or special direction or billing. In the movement of two empty cars toward the railroad yard from a manufacturing plant, to which the cars had conveyed interstate shipments, plaintiff was injured. The cars then being moved had finished their interstate run to place of consignment, and shipments therein had been removed, and they had not started upon their home journey. The cars were engaged in interstate commerce until they reached the destination to which they were consigned, and then ceased to bear such character until billed or designated for return.
To bring the empty cars again into interstate commerce service, the burden rested upon plaintiff to show that, at the time of the accident, they had commenced predetermined interstate movement. It was not enough to show that the cars were in fact thereafter billed, consigned, or actually moved interstate. Whether cars bringing freight into this state regain interstate character depends upon predetermination of their use and movement, and not upon their use and movement after injury sustained by an employee. The ‘home route’ card, accompanying cars bringing freight into this state, acts as a guide for the return thereof to the owning road, but does not predetermine their use and movement after delivery to the consignee and their unloading. Predetermination of use and movement may be exercised by the owning road. If not so exercised by the owning road, the use and movement of such empty cars is left with the carrier in possession of them, and, until determined, the cars are not engaged in interstate commerce in any movement of them in switching or placement upon side tracks in the meantime, except in act of assembly in a train for interstate movement.
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Shidloski v. New York, C. & St. L. R. Co.
... ... Co., 178 F. 643; Heston v ... Railroad Co., 254 F. 787; Rodgers v. Canadian ... Northern Ry. Co., 246 Mich. 399, certiorari denied, 280 ... U.S. 554; Whitmore v. Am. Ry ... ...
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Lavigne v. Chicago, M., St. P.&P.R. Co.
...was merely anticipating a future need and the car was “drifting”--waiting to be assigned to service. In Rogers v. Canadian Nat. Ry. Co., 246 Mich. 399, 224 N.W. 429, certiorari denied 280 U.S. 554, 50 S.Ct. 15, 74 L.Ed. 610, it was held in effect that a movement of empty cars does not neces......
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Shidloski v. Railroad Co.
...denied, 255 U.S. 575; Johnson v. Great Northern Ry. Co., 178 Fed. 643; Heston v. Railroad Co., 254 Fed. 787; Rodgers v. Canadian Northern Ry. Co., 246 Mich. 399, certiorari denied, 280 U.S. 554; Whitmore v. Am. Ry. Express Co., 269 S.W. 657. (a) The failure of the defendant to produce the r......
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Wilken v. N.Y. Cent. R. Co.
...at the time of the accident, he was employed in or incident to interstate commerce was upon the injured employee. Rogers v. Canadian Nat. R. Co., 246 Mich. 399, 224 N.W. 429. We are not in accord with appellee's contention ‘that the undisputed facts show the plaintiff’ was engaged in inters......