Montgomery v. Southern Pacific Co.

Me. Justice Bean delivered the opinion of the court. It is contended by counsel for plaintiff that the work plaintiff Montgomery was doing at the time of the injury complained of was incidental to the movement of interstate commerce, and that he was acting partly as an agent of interstate commerce at the time, and was therefore “engaged in interstate commerce” within the meaning of the act. Counsel for defendant contend: (1) That neither the engine, caboose, nor tank car was an instrument of interstate commerce; (2) that, while moving this tank car, defendant was not engaged in interstate commerce, nor was plaintiff employed therein. The “Employer’s Liability Act” provides: “That every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” The first and main question is, Did the work in which the plaintiff and his associates were engaged at the time of the injury have a real or substantial connection with interstate commerce, so as to bring plaintiff within the protection of the act? The question is not an entirely new one. 1. The Federal courts have blazed the way to be followed in determining most, if not all, of the questions involved in this action. 2. As will be noticed, the evidence tended to show that the plaintiff was engaged in moving the oil for the purpose of providing fuel for the engines used in transmitting freight and passengers from California into Ore — 604 — gon. The oil was to be used principally for the engine and crew with which plaintiff was engaged in his general work of switching interstate cars and spotting, setting-out, and moving them from station to station. It appears that about two-thirds of the work of plaintiff, of switch crew, and engine was the moving of cars used in the transportation of interstate commodities, although all of plaintiff’s work was done in the State of California. Mr. Thornton, in his work on the Federal Employer’s Liability and Safety Appliances Acts (2 ed.), § 38, says: “It is beyond debate that the statute embraces all engineers, firemen, brakemen and conductors employed at the time of their injuries upon an interstate train. In one case it is said that the statute covers a telegraph operator dispatching trains, and in that same case it is said that Congress meant to include everybody whom it could include. * * It includes a car repairer in a switching yard repairing interstate cars. * * No doubt, it is believed, but what a freight handler of interstate freight in loading and unloading cars in which it is to be or has been carried is covered by the terms of the statute. So are mechanics or repairmen, while engaged upon interstate cars, engines or other interstate instrumentalities, and even while passing over the railroad for the purpose of repairing such cars, engines or instrumentalities. Likewise the members of an emergency crew while at work upon any interstate train or any railroad track that is a highway of interstate commerce. Linemen fall within its terms. Not only are track repairers within its terms but also those who construct or repair the signal wires used by an interstate railroad, even though they be used without discrimination between the local or interstate character of its traffic. * * In the case of yardmen engaged in making up an interstate train, under the liberal construction given these Federal statutes by the courts, there is no doubt but what they will be held within the terms of this Employer’s Liability Act.” In the case of Mondou v. N. Y., N. H. & Hartford R. R. Co., and the other cases decided therewith, 223 U. S. 1, at page 48 of the opinion (32 Sup. Ct. 169, at — 605 — page 174: 56 L. Ed. 327: 38 L. R. A. [N. S.] 44), Mr. Justice Van Devanter said: “Congress, of course, can do anything which in the exercise by itself of a fair discretion, may be deemed appropriate to save the act of interstate commerce from prevention or interruption, or to make that act more secure, more reliable, or more efficient. The act of interstate commerce is done by the labor of men and with the help of things; and these men and things are the agents and instruments of the commerce. If the agents or instruments are destroyed while they are doing the act, commerce is stopped; if the agents or instruments are interrupted, commerce is interrupted. * * ” The part of the opinion on page 52 of 223 U. S. (32 Sup. Ct. 176: 56 L. Ed. 327: 38 L. R. A. [N. S.] 44), is peculiarly applicable to the case at bar. It is there said: “It is true that the liability which the act creates * * is imposed for the benefit of all employees of such carriers by railroad who are employed in interstate commerce, although some are not subjected to the peculiar hazards incident to the operation of trains. * * ” Digressing from the main question, this language, to our minds, indicates that the ruling of the circuit court sought and obtained by the learned counsel for defendant, to the effect that, before plaintiff would be engaged in interstate commerce within the meaning of the act of Congress, he must be engaged at the time in handling a car which either came from out of the State, or was bound outside of the State, or was passing through the State, restricts the matter within too narrow limits. In Doherty, Liability of Railroads to Interstate Employees, § 17, pp. 88, 89, it is said: “But what rule may be laid down for the determination of the question, ‘When is an employee engaged in interstate commerce?’ The crew of an interstate train is of course included. A switchman engaged in duty, as such, for an interstate train, a freight handler while — 606 — employed in handling interstate or foreign freight, and mechanics or car repairmen while engaged in work upon interstate cars or other interstate instrumentalities, and while passing over the road for the purpose of making repairs upon cars or engines of an interstate train, are also included, and emergency or wrecking crews, while at work upon any train on an interstate highway, may reasonably be included. In other words, all who are at the time of injury engaged in duty which has direct relation to the interstate business of the carrier are entitled to the protection of the act.” And on page 229, Doherty, Liability of Railroads to Interstate Employees, it is said: “All who participate in the maintenance of the instrumentalities for the general use of the road, even in the maintenance of such instrumentalities as are used on purely local branches, necessarily participate in the work of interstate commerce, because interstate commerce is carried on over every part, branch, section, and division of the entire system of such interstate road.” In Southern Ry. Co. v. United States, 222 U. S. 20, 27 (32 Sup. Ct. 2, 4: 56 L. Ed. 72), we find the following: “Cars are seldom set apart for exclusive used in moving either class of traffic, but generally are used interchangeably in moving both; and the situation is much the same with trainmen, switchmen, and like employees, for they usually, if not necessarily, have to do with both classes of traffic. Besides, the several trains on the same railroad are not independent in point of movement and safety, but are interdependent, for whatever brings delay or disaster to one, or results in disabling one of its operatives, is calculated to impede the progress and imperil the safety of other trains.” In Louisville & Nashville R. R. Co. v. Melton, 218 U. S. 36, 48 (30 Sup. Ct. 676: 54 L. Ed. 921), the court said: “A railroad cannot be run without bridges; bridges cannot be built without carpenters. The work of a bridge — 607 — carpenter on a railroad is perhaps no less perilous than the work of an operative on one of its trains. Coal tipples are no less essential to the operation of a railroad than bridges, because the engines cannot be operated without coal. The construction of a coal tipple is therefore essential to the operating of a railroad.” In the case of Zikos v. O. R. & N. Co. (C. C.), 179 Fed. 893, the plaintiff was engaged in repairing a track used incidentally in both classes of traffic. It was held that his employment came within the law; the court saying at page 898: “But where the employment necessarily and directly contributes to the more extended use and without which interstate traffic could not be carried on at all, no reason appears for denying the power over the one, although it may indirectly contribute to the other.” See, also, Colasurdo v. Central R. R. Co. (C. C.), 180 Fed. 832, which is a strong case and very much in point. As stated in the brief of the late Solicitor General, and quoted in the Mondou case, 223 U. S. 48 (32 Sup. Ct. 174: 56 L. Ed. 327: 38 L. R. A. [N. S.] 44), “Interstate commerce (if not always, at any rate when the commerce is transportation) is an act.” Let us then determine whether or not the act in which plaintiff was engaged at the time of the injury was one relating in a substantial way to interstate commerce. 3. A large part of the general duties of plaintiff, with his associates, was in switching and spotting cars to be loaded, and cars loaded, with interstate commerce commodities. In order to aid and accelerate such interstate business, the plaintiff, with the other members of the crew, by means of the engine, hauled cars up the mountains to a station from which they could conveniently be taken by a regular, through, or interstate train passing over an interstate railroad. Loading freight and making preparation for the same to be shipped by switch — 608 — ing the cars and attaching them to the regular train, and especially in transporting the cars a portion of the distance, would seem to be as much a part of the interstate traffic of a railroad as the actual transportation across the State line; so, also, would be the furnishing and pumping of oil for the engines to be used in such interstate business. Was not the act which plaintiff was perform^ ing at the time of the accident just as essential to interstate commerce as the repairing or the pulling of the throttle of an engine used in such traffic ? It was a necessary act in the transmission of interstate freight, and all who co-operated in the work were engaged in interstate commerce within the meaning of the act of Congress. It was closely connected with his general duties. Oil is the food that gives life and strength to the engine, furnishing the motive power for the transportation of interstate freight, and by the aid of which a stream of commerce flows from State to State and from State to foreign nations. To illustrate, draw a line to represent the boundary between two States; draw another line, crossing the first, to represent the stream of interstate commerce. Whatever act in a substantial manner aids, accelerates, or increases the amount of, or furnishes a part of the supply for, such stream, and is connected therewith, to the same extent may be said to aid, support, and maintain the act of interstate commerce. Such labor makes interstate commerce more secure, more reliable and more effective. Suppose that all the agents engaged in providing oil to be used as fuel in interstate commerce upon a railroad, as this oil was destined to be used, should cease to act, for instance, on account of a boycott or by reason of an injunction order issued by a State court for some purpose conceived to be good (a violent assumption), and there were a failure of the supply of fuel and both the switch and interstate engines were compelled to stop, the stream of — 609 — interstate commerce would also stop or be lessened to the same extent. What court or lawyer would say that under these circumstances there was not a substantial interference with interstate commerce? 4. In the business of an interstate railroad, the interstate and intrastate traffic is intermingled and usually handled indiscriminately. It would be practically impossible to name any servant of an interstate road who is employed exclusively in the furtherance of purely interstate traffic. All employees who participate in the maintenance or operation' of the instrumentalities for the general use of the road, thereby enhancing the utility of such commerce, are necessarily engaged in the work of interstate commerce, within the meaning of the act. The fact that a portion of plaintiff’s work pertained to local traffic would not change the character of his labor in the performance of acts reasonably proximate and essential to the moving of interstate freight, and in assistance thereof. Doherty, § 58; Thornton, § 37. The evidence introduced and offered upon the trial in the case at bar tended to show that the defendant railroad company, and the plaintiff, its employee, were, at the time of the injury complained of, engaged in interstate commerce by railroad, within the meaning of the act of Congress. It follows, if this be true, that plaintiff was entitled to the protection of the act, and the case should have been submitted to the jury. This conclusion is, we think, in harmony with the act of Congress, the above authorities, and Darr v. B. & O. R. Co. (D. C.), 197 Fed. 665; Lamphere v. O. R. & N. Co., 196 Fed. 336 (116 C. C. A. 156) ; Horton v. O.-W. R. & N. Co., 130 Pac. 897) ; Jones v. Chesapeake & Ohio Ry. Co., 149 Ky. 566 (149 S. W. 951) ; Breske v. M. & St. L. Ry. Co., 115 Minn. 386 (132 N. W. 337). 5. The evidence tendered by plaintiff, relating to the general duties of the plaintiff and of the other members — 610 — of the switching crew during the time plaintiff had been employed by the railroad company, was, in our opinion, material for the purpose of showing plaintiff’s general duties and the kind of business in which the car of oil was to be used. The trial court erred in rejecting the evidence. The position of counsel for defendant is that it is immaterial what plaintiff’s general duties were, or what he may have been engaged in at any other time than that of the accident, and they cite therefor, among other authorities, Doherty, § 17, pp. 87, 88, and Thornton (2 ed.), § 37. But we do not so read these authorities. They are to the effect that it is not enough to show that an employee was engaged generally by an interstate railroad company in order to come within the provisions of the act, but that he must go further and show that he received his injury while engaged in interstate commerce for the company. This does not necessarily indicate that testimony as to his general duties would be immaterial. The judgment of the lower court will therefore be reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion. Reversed and Remanded.