New Orleans & N. E. R. v. Beard , 128 Miss. 172 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

Beard was plaintiff, and brought suit in the circuit court for personal injuries received Avhile employed as boiler maker, using in the course of his duties an electric welding machine, which was designed and used for welding broken metal, such as boiler flues and the like. It was alleged that he was injured by working inside an engine in the electric welding of the flues of a locomotive. He charged that it was the duty of the railroad company to furnish him with an incandescent electric light, and that the company negligently failed to furnish him a reasonably safe light, and negligently failed to furnish him a reasonably safe welding machine.

The specific charges of negligence Avere these: First, that the welding machine was old, defective, and in disrepair, and that it had to be plugged, the effect of Avhich was to carry the full voltage used by the machine at all times through the cable used by the welder; second, that the Avire cables were not properly insulated; third, that said cables were permitted to pass over Avet ground, by Avhich the wires becaine “shorted,” and that this endangered the life of the Avorkman; and, fourth, that the Avire or cable used for the light was also Avorn and improperly insulated, and that by reason of these defects the current was “shorted,” and the plaintiff received a severe shock, knocking him unconscious and inflicting permanent injuries.

The defendant pleaded, first, the general issue; second, contributory negligence; and third, the assumption of the risk. The plaintiff by replication took, issue on each of the special pleas. There was a verdict for the plaintiff for fifteen thousand dollars, from which this appeal is prosecuted.

The outstanding legal question involved in this appeal is whether or not the plaintiff was employed at the time of his injury in interstate commerce. The defendant requested the court to so instruct the jury, and that the case was controlled by the federal Employers’ Liability Act (U. S. Comp. St., sections 8657-8665), and asked various instructions as to liability, burden of proof, assumption of risk, etc., based on the federal act, all of Avhich were refused by the court.

There are other assignments of error, but we deem it only necessary to notice the question as to whether or not the case is controlled by the federal Employers’ Liability Act. The engine in question, which Avas being repaired by the plaintiff at the time of his injury, Avas one of five engines bought by the defendant for .use in hauling interstate freight trains from New Orleans to Meridian, and vice versa. It required four such engines to be used daily in the moving of such trains. The trains in question at times picked up car lots of freight of a perishable nature, and cars of cattle, where there were two or more cars at a point in Mississippi, to other points in Mississippi; but these cars were placed in the train carrying interstate commerce as above stated. One of the five engines was idle at all times, and the several engines would be alternated as occasion required; there being at all times four locomotives of the kind in question engaged in moving interstate freight, and one of the locomotives undergoing repairs at the company’s shops at Meridian, Miss. The locomotive in question at the time of the injury was placed in the shops of the company for a general overhauling and repairs, and had been dismantled, and had been undergoing repairs for several weeks prior to the injury, which occurred on the 21st of August, and the said repairs were not completed until September 8, 1920. The testimony for the defendant showed that the engine or locomotive could have been put in running condition within one week after the injury, and also showed that it was the purpose of the railroad authorities to place it back in service whenever the repairs should be completed.

Was the plaintiff engaged in interstate commerce at the time' of the injury, within the meaning of the federal Employers’ Liability Act? We think there is no such direct connection with the plaintiff’s work and interstate commerce, under the facts disclosed in this record, as to make the federal Employers’ Liability Act apply. In our opinion this cause is controlled by the principles announced in Minneapolis & St. Louis R. R. Co. v. Winters, 242 U. S., 353, 37 Sup. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54, and B. & O. R. R. Co. v. Branson, 242 U. S. 623, 37 Sup. Ct. 244, 61 L. Ed. 534, and the authorities therein cited.

The other assignments of error are not well taken. Accordingly the judgment of the court below will be affirmed.

Affirmed.