Sassaman v. Pennsylvania R. Co. , 144 F.2d 950 ( 1944 )

JONES, Circuit Judge.

The plaintiff, an employee of the defendant company, brought suit in the District Court for the District of New Jersey to recover damages for injuries sustained by him upon alighting from a passenger train of the defendant company while he was on his way home after having discharged, for the day, the duties of his employment.

The complaint ascribed negligence on the part of the defendant as the cause of the plaintiff’s injuries. Generally stated, the alleged negligence consisted of the defendant’s failure to maintain a station platform, at the situs of the injury to the plaintiff, in a reasonably safe condition. The complaint lays federal jurisdiction of the controversy upon the diversity of the citizenship of the parties which the trial court found accordingly. The case was tried to the court below without a jury. The trial judge made no conclusion as to any right of action in the plaintiff under the Federal Employers’ Liability Act, 35 Stat. 65, c. 149, 45 U.S.C.A. § 51, but did find that the plaintiff was not functioning within the scope of his employment when injured. The trial court also found that the defendant’s negligence in the particular alleged was the proximate cause of the plaintiff’s injuries, that the plaintiff was free from contributory negligence and that his relationship to the defendant at the time of his injury was that of a passenger to whom the defendant owed reasonable care. The trial court thereupon entered judgment for the plaintiff on the basis of his common law right of action for negligence and the defendant took the pending appeal.

Save for an averment that at the time of his injury the plaintiff was engaged in interstate commerce, the complaint is silent as to any right of action in the plaintiff under the Federal Employers’ Liability Act. Nor was the case disposed of upon that basis by the court below. However, the plaintiff as appellee now urges upon us the existence of such a right, under the facts of the case, as a ground for sustaining the judgment in his favor. As the right afforded by the Federal Employers’ Liability Act, when applicable, is exclusive of all other remedies for injuries to employees,¹ it becomes necessary to determine in limine whether the evidence adduced at trial made out a case cognizable under the Act. We, therefore, turn immediately to a consideration of that question.

The plaintiff was employed as a train dispatcher by the defendant company in its terminal offices in Jersey City, New Jersey. His home was in Newark, New Jersey, some nine miles distant from the place of his employment. The facts disclose, and it is undisputed, that the customary duties of the plaintiff’s employment were in furtherance of interstate commerce conducted by the defendant company as a common carrier by rail. On August 8, 1939, the plaintiff, having completed his work for the day a few minutes before three o’clock in the afternoon, left his place of employment in the defendant’s Jersey City offices and, after descending to the station below, there boarded one of the defendant’s passenger trains at 3:04 that afternoon, as was his custom, to return to his home in Newark. The train itself was in intrastate commerce running between Jersey City and South Amboy, New Jersey. When the train arrived at the defendant’s South Street Station in Newark, the place of the plaintiff’s-intended departure, it was so brought to a stop that the car in which the plaintiff was riding, toward the rear of the train, was near the end of the platform. The plaintiff was thus required to alight at a place on the platform which he had never before traversed. The platform, which was of brick surface, was in a bad state of repair where the plaintiff alighted, there being a depression in the platform, immediately below the car steps which the plaintiff descended, about a foot and a half in diameter and an inch and a half to two inches in depth. The depression was not readily discernible by one looking down on it from above. It caused the plaintiff to lose his balance and fall upon stepping into it. Thereby, he suffered the injuries, as to which there is no serious dispute, for which he brought his suit to recover damages.

The question of the plaintiff’s right under the Federal Act is to be determined according to the existing law at the time of his injury which occurred shortly prior to the 1939 amendment, 53 Stat. 1404, 45 U.S.C.A. §§ 51, 54, 56, 60. He can therefore maintain a right of action under the Act, as it existed at the time of the occurrence in question, only if the defendant was then engaged as a common carrier in interstate commerce and he was employed by the carrier in such commerce.² This, we think the evidence fails to establish. The trial court found, and the evidence well justifies the finding, that the plaintiff was not functioning within the scope of his employment at the time he sustained his injuries. In fact, plaintiff’s counsel at trial stipulated of record that “to travel on the train [from Jersey City to Newark] was not within the scope of his' duty” and “that what he was doing [i.e., travelling on the defendant’s train], he was doing voluntarily * * (Applts. App. pp. 36a, 37a). In any event, it is beyond dispute that, at the time of his injury, the plaintiff was not in the performance of the duties of his employment which he had already completed for the day in Jersey City.

It seems clear from the facts which we have recited that the plaintiff failed to show that both he and his employer were engaged in interstate commerce at the time of the infliction of his injuries. It would follow, therefore, that a case under the Federal Employers’ Liability Act, .prior to its amendment in 1939, is not made out by the record before us. North Carolina R. Co. v. Zachary, 232 U.S. 248, 256, 34 S.Ct. 305, 58 L.Ed. 591, Ann.Cas.1914C, 159.

But, notwithstanding his counsel’s formal admissions at trial, as above quoted, the plaintiff now argues that, when injured at Newark, he was still upon the defendant’s premises consequent upon and incident to his taking leave of his place of employment in order to return home and that therefore his status as an employee, engaged in his employer’s interstate commerce, still endured so as to entitle him to a right of action under the Federal Employers’ Liability Act. Cf. Erie R. Co. v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057, Ann. Cas.1918B, 662; Cudahy Packing Company v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532; Lukon v. Pennsylvania R. Co., 3 Cir., 131 F.2d 327.

We believe it will be found in the cases just cited as well as generally that, in order for an injured employee to be able to claim a right of action under the Federal Employers’ Liability Act, it must be made to appear that his injuries were sustained either upon the premises where he normally performed the duties of his employment or upon premises so closely adjacent thereto as to be a part of the working premises in the sense that the employee was required to traverse them in going to or upon leaving his work. In other words, the employee’s presence upon the premises where he receives his injuries must have been a necessary incident to the discharge of the duties of his employment. Thus, in the Winfield case, supra, 244 U.S. at page 173, 37 S.Ct. at page 557, 61 L.Ed. 1057, Ann.Cas.1918B, 662, the Supreme Court said that “In leaving the carrier’s yard at the close of his day’s work the deceased was but discharging a duty of his employment.” (Emphasis supplied.) In the Parramore case, 263 U.S. at page 421, 44 S.Ct. at page 153, 68 L.Ed. 366, 30 A.L.R. 532, the place of the employee’s injury was “The only practicable way of ingress and egress for employees * * In the Lukon case, the employee, a section hand, was killed after his work for the day was over but while he was walking toward his home along the right of way upon which he customarily worked. In Bountiful Brick Company v. Giles, 276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507, 66 A.L.R. 1402, where the Utah Workmen’s Compensation Act was involved, the Supreme Court gave pointed expression to the crucial situation determinative of the commencement or termination of the employee relationship prior to the employee’s entering the actual place of his employment. It was there said (276 U.S. at page 158, 48 S.Ct. at page 222) that: “Probably, as a general rule, employment may be said to begin when the employee reaches the entrance to the employer’s premises where the work is to be done; but it is clear that in some cases the rule extends to include adjacent premises used by the employee as a means of ingress and egress with the express or implied consent of the employer.” Of course, the rule as to when the employment ends could be no different as the use of the word “egress” in the above quotation envisions.

In short, the condition which makes possible a claim for injuries suffered as in the course of employment but which are actually received on premises away from the employee’s place of employment is the fact that the employee must, of necessity, traverse such other premises in order to reach or depart from the place of the discharge of his duties. In such circumstances, he is upon the adjacent or other premises, as a requisite of his employment, either with the knowledge and consent or the approval of his employer, at the least, legally implied from the knowable situation.

But, that is not this case. When the plaintiff descended from his place of employment to the defendant’s Jersey City Station he was free to travel home or go elsewhere, as suited his desires, by whatever means of transportation he chose. He was not required to travel on the defendant’s train. Much less, was he required to travel upon a particular train. There was absent, therefore, the employer compulsion as to the mode of travel to and from work which serves to attach or continue the employee relationship, away from the place of employment, and makes an interstate employee’s right of recovery for injury remediable under the Federal Employers’ Liability Act. See Atlantic Coast Line R. Co. v. Williams, 5 Cir., 284 F. 262. Cf. Glover v. Union Pac. R. Co., D.C., 21 F.Supp. 618, appeal dismissed upon stipulation, 9 Cir., 97 F.2d 1015, 1016.

Nor do the cases of North Carolina R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann.Cas.1914C, 159, Virginian R. Co. v. Early, 4 Cir., 130 F.2d 548, or Chicago, M., St. P. & P. R. Co. v. Kane, 9 Cir., 33 F.2d 866, lay down any different rule as to the extent of the premises which admit of the existence of an employee relationship before the employee has actually arrived at or after he has left his place 'of employment. In the Zachary case, during a temporary suspension of his work, the employee, a fireman, while attempting to cross certain tracks which intervened between his engine and his boarding house, a short distance away, was killed within the limits of the railroad yard where he worked. In the Early case, the employee was killed in the railroad yard on the premises upon which he worked while returning from a restaurant, on the same premises, maintained by the railroad for the use of its employees. And, in the Kane case, the employee, while passing, before his work for the day had begun, from his bunk on a side track to the toilet maintained by the railroad at a workmen’s camp was killed by steam from an engine upon the tracks where he worked. The only case that we have been able to find which extends the employee relationship to premises beyond the place of the employee’s employment or premises adjacent thereto is Hendricks v. New York, N. H. & H. R. Co., 251 N.Y. 297, 167 N.E. 449, a decision by the Court of Appeals of New York. While that case involves a construction of the Federal Employers’ Liability Act, in the administration whereof state courts exercise concurrent jurisdiction (Second Employers’ Liability Cases Mondou v. New York, N. H. & H. R. Co., 223 U.S. 1, 56, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.,N.S., 44), and is therefore pertinent, the decision, which was by a divided court, extends, we believe, the employee relationship in interstate commerce beyond the limits set by the federal decisions to which we have referred.

We accordingly concede that the plaintiff was not acting within the scope of his employment at the time he received his injuries and that, consequently, he was not employed in interstate commerce at that time. It, therefore, follows that he does not have a right of action under the Federal Employers’ Liability Act. Cf. Young v. New York, N. H. & H. R. Co., 2 Cir., 74 F.2d 251, and Bishop v. Delano, 7 Cir., 265 F. 263, certiorari denied 254 U.S. 632, 41 S.Ct. 7, 65 L.Ed. 448.

We come then to the question whether the trial court, having found the defendant’s negligence to have been the proximate cause of the plaintiff’s injuries and having also found the plaintiff free of contributory negligence, was justified, under other circumstances present, in entering judgment for the plaintiff upon his common law right of action for damages.

In going from his place of employment in Jersey City to his home in Newark upon the defendant’s train, the plaintiff travelled upon a pass which was good on the defendant’s entire system save for a few expressly excepted trains (not here involved). The plaintiff was entitled to and received the pass from the defendant because of his length of service with the railroad (forty years at the time of his injury). At an earlier time he had received trip passes as occasion required, then later zone passes and finally the annual pass upon which he was riding at the time in question. On the back of the pass was the following:

“Conditions.

“This pass is not transferable. If presented by a person not named therein, Conductor will take up the pass, and collect the proper fare. The user expressly assumes all risks of accidents, and of personal injury, and loss or damage to property, regardless of their causes, and absolves the Company from all liability therefor. As a condition to its issue, it is declared by the user that such user is not prohibited by law from receiving free transportation, and further that the pass will be lawfully used.” It is the defendant’s contention that the plaintiff by accepting and using the pass made himself subject to the conditions printed thereon and that thereby he contracted away his common law right of action for damages for the particular injuries by assuming “all risks of accident, and of personal injury * * * regardless of their causes” and by absolving “the [defendant] Company from all liability therefor.” There can be no doubt that the conditions of the pass, if presently effective, are sufficiently specific to work the result contended for by the defendant.

Federal jurisdiction of the controversy being based upon diversity of citizenship, we should have thought that the substantive rights of the parties were to be determined according to the applicable local law which confers the right sought to be barred by the release (Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487), were it not for the decision in Kansas City Southern R. Co. v. Van Zant, 260 U.S. 459, 468, 43 S.Ct. 176, 177, 67 L.Ed. 348. There it was held that Congress, by the Hepburn Act,³ had legislated not only as to the persons to whom railroads might lawfully issue free passes but also as to “the relation of their users to the railroad which issued them, the fact and measure of responsibility the railroad incurs by their issue, and the extent of the right the person to whom issued acquires, * * Whether or not that was intended to mean that the effectiveness of a release of a carrier’s liability for negligence, by one travelling on a pass, is in all places to be determined according to federal rules under the Hepburn Act, the effect of the release would have been no different had we referred to the law of New Jersey — the place of the alleged wrong — for under the federal decisions⁴ as well as under the law of New Jersey,⁵ such a release is valid and enforceable when given by a passenger not for hire. When a railroad pass is necessarily “free” is, of course, to be determined exclusively in accordance with the intent of the Hepburn Act, the paramount pertinent regulation.

The question, therefore, which arises under the instant circumstances is whether the pass was free in the sense that it was a gratuity, within the contemplation of the Hepburn Act, while being used by the plaintiff, as customarily, in travelling to and fro between his home and his place of work as a necessary antecedent to or consequence upon the discharge of the duties of his employment. This precise question has never been judicially passed upon so far as our research discloses, but we think the answer is to be found by apt analogy in the decision of the Supreme Court in Norfolk Southern R. Co. v. Chatman, 244 U.S. 276, 37 S.Ct. 499, 61 L.Ed. 1131, L.R.A. 1917F, 1128.

In the Chatman case, a drover, travel-ling on a pass in connection with the shipment of some horses, was injured in the course of travel through the negligence of the carrier for which he brought suit for damages. The pass contained a complete release of the railroad from liability. The drover had signed the release upon issuance of the pass for which he had paid nothing. In fact, the contract in connection wherewith the pass was issued expressly recited that only the freight upon the horses had been paid. Notwithstanding that the drover admittedly had not paid anything for the pass, the Supreme Court held that it was not a gratuity within the intendment of the Hepburn Act as was the pass to a member of an employee’s family in Charleston & W. C. R. Co. v. Thompson, 234 U.S. 576, 34 S.Ct. 964, 58 L.Ed. 1476, which the Chatman case expressly distinguished.

The distinction with respect to the pass in the Chatman case was based upon the theory that Congress, in enacting the Hepburn Act, must have had in mind the historical relationship which had theretofore existed between railroads and drovers travelling upon such railroads in connection with the shipment of livestock, and, therefore, did not intend that that existent status should be affected by the provisions of the Hepburn Act. The Supreme Court accordingly held that the drover, although riding on a pass for which he had paid nothing, stood in the relationship to the carrier of a passenger for hire, just as he had theretofore, and that his release of the railroad’s common law liability for negligence was void and unenforceable.

There was also an historical contractual relationship between railroads and their employees who, living at distances from their places of employment, travelled between their homes and their work on transportational facilities afforded by their employer. Where the means of travel were required or provided by the carrier for the employee’s use in direct connection with the immediate discharge of his duties, the employer-employee relationship was held to exist and an injury to an employee in the course of such travel was compensable only on the basis of that relationship. For illustrations, see cases cited in annotation in 13 Ann. Cas. 890. But, where the employee, having completed or not yet having undertaken his work for the day and not being under any direction or compulsion from his employer as to his mode of travel to and from work, utilized, of his own volition, the employer’s regular passenger train service for the purpose of going to or from work, upon a pass furnished by the employer, he was held not to be in the performance of his employment, while so travelling, but a passenger and, as such, entitled to the care due by a common carrier to a passenger for hire.

While we have not found any pertinent federal decision on this precise point at the time of the passage of the Hepburn Act, there were well considered state decisions to that effect. In a case note in 19 Yale Law Journal at p. 57 (1909) on Vroom v. New York Cent. & H. R. R. Co., 1909, 129 App.Div. 858, 115 N.Y.S. 1063, affirmed 1910, 197 N.Y. 588, 91 N.E. 1121, the author stated that, — “The weight of authority appears to be that an employee of a railroad travelling on a pass to and from work is a passenger, not an employee”, citing Doyle v. Fitchburg R. Co., 1894, 162 Mass. 66, 37 N.E. 770, 25 L.R.A. 157, 44 Am.St.Rep. 335, and McNulty v. Pennsylvania R. Co., 1897, 182 Pa. 479, 38 A. 524, 38 L.R.A. 524, 61 Am.St.Rep. 721. A distinguishing feature is that, at the time of the employee’s travel to and from his place of work and his home upon a regular passenger train of his employer, he is performing no part of the service for which he is employed and is under no obligation to ride upon his employer’s trains for the performance of his duties. See the McNulty case, supra, 182 Pa. at pages 483, 484, 38 A. at page 525, 38 L.R.A. 524, 61 Am.St.Rep. 721. While it was said in that case that the employee’s right to travel to and from work on his employer’s trains was a service which the railroad by the terms of its contract was required to render the employee, the contractual status of passenger, occupied by a railroad employee travelling to and from work on a pass furnished by his employer, arose as well by virtue of a rule of the company or by common custom. See Klinck v. Chicago City R. Co., 1914, 262 Ill. 280, 104 N.E. 669, 52 L.R.A.,N.S., 70, Ann.Cas.1915B, 177.

That the custom, to which reference has just been made, was known to Congress at the time the Hepburn bill was under consideration, is hardly open to question. The memorial then lodged by the railroad brotherhoods with Congress⁶ pointed out the custom and stressed, in particular, the need for excluding from the implications of the free pass prohibition of the Hepburn bill employees who found it convenient and economical to travel between their work and their homes on their employer’s trains.⁷ That Congress was sympathetic to the preservation of the status theretofore enjoyed by employees of railroads with respect to passes appears in the debates on the bill as the illustration in the margin⁸ taken from the debate in the Senate on the first conference report confirms. The bill went to a second and, finally, a third conference from which it emerged, as ultimately passed, with a prohibition upon -the issuance by an interstate carrier of a free pass or free transportation to anyone except to its employees and their families and certain other expressly excepted persons.

On the basis of the reasoning in the Chatman case, it is our opinion that Congress did not intend by the Hepburn Act to alter the status of employees of railroads while travelling between their homes and their work on passenger trains of the employer upon passes furnished by the latter. It will be noted that, in excluding “caretakers of livestock” (drovers) from among those to whom interstate carriers were not permitted to issue free passes, the Hepburn Act did so in exactly the same way that it excepted “employees and their families.” So far as the words of the statute are concerned, the pass is no more “free”, in the sense that it is a gratuity, in the one instance than it is in the other.

If it be suggested that what has just been said would serve equally to preserve to a member of an employee’s family, while travelling upon a free pass, the rights of a passenger for hire, the answer is that, for many years prior to the enactment of the Hepburn Act, a gratuitous pass was held capable of validating a release of the issuing carrier’s liability for negligence. What the Thompson and Van Zant cases decided was that a pass to a member of an employee’s family was, of necessity, a gratuity and the release of liability therefore binding. And, while the decisions in the Thompson and Van Zant cases might cogently be advanced to validate a release of liability by an employee for injury received while travelling upon his pass for his own pleasure or other personal purposes, we think that a material distinction is clearly indicated where the pass is used by the employee for travel between his home and his place of employment. In the latter instance, the employee uses the pass in order to render his services available to the employer at the designated place of work. When so travelling, the employee makes a contemplated use of the railroad’s passenger facilities for the latter’s service just as the drover makes a like contemplated use of the railroad’s transportational facilities for the purpose of seeing to the care and attention of livestock while in the carrier’s custody. The pass to the drover in the Chatman case, although free, was not a gratuity within the intent of the Hepburn Act. We think the same is no less true of a pass to an employee where it is used by him to go to and from his work.

The record in this very case discloses that, at a former time when the plaintiff was resident in Newark, his services as a train dispatcher were utilized by the railroad in Philadelphia between which place and his home he travelled back and forth on his pass. In so travelling, he was not performing the service for which he was employed and, therefore, had no right of action as an employee for any injury received in the course of travel. If, in such circumstances, it was necessary for him, because of the Hepburn Act, to pay his fare in order to preserve his right to reasonably safe conduct by the carrier, it is only reasonable to infer that his additional travel expense would have called for a compensating increase in his wage or the carrier might have been deprived of his services. A pass, when so used by an employee, cannot in any true sense be deemed a gratuity.

The fact that the pass upon which the plaintiff was riding, when returning home from his work, was the same pass he would have used to travel for his own pleasure can hardly serve to obliterate the distinction as to his contractual relation with the carrier when he was using the pass to go to and from his work. The plaintiff being already possessed to his employer’s knowledge of a pass capable of providing for his travel between his work and his home, it would indeed be an unwarranted insistence upon form to hold that he should have obtained a separate pass for his travel to and from his work in order not to impair his status as a passenger while so travelling. The pass he had was quite capable of serving the dual purposes. Nor can there be any greater difficulty in determining the purpose for which a pass is being used at any particular time than there is in establishing any other fact material to a litigated issue. Certainly, there is no question in this case that, at the time of the plaintiff’s injury, he was using his pass, as was his custom, to return home after his completion of his day’s work.

The question here presented is purely one of statutory construction as to the intent of the Hepburn Act in its relation to a given situation just as was the question in the Chatman case. Any other construction than that the Hepburn Act was not intended to afford a carrier the basis for a release of its liability for negligence to an employee whom it is transporting as a passenger between his work and his home upon a free pass would indeed be hard to reconcile with the Congressional concern evidenced for railroad employees whose claims for injury qualify under the Federal Employers’ Liability Act, 35 Stat. 66. Sec. 5 of that Act, 45 U.S.C.A. § 55, expressly nullifies any contract, etc., designed or intended to exempt a carrier from liability for negligence remediable under that Act.⁹ What possible reason could there be for imputing to Congress, because of the Hepburn Act, less solicitude for the rights of a carrier’s employees whose injuries, although received while going to or from work upon passes furnished by the carrier, are not received in the course of employment or, otherwise, do not happen to qualify as claims under the Federal Employers’ Liability Act ? We can see none.

As the Hepburn Act fixes the fact and measure of responsibility of a railroad in connection with the issuance of a pass and the extent of the right, thereby acquired, by the person to whom issued (Kansas City Southern R. Co. v. Van Zant, supra), it is our conclusion that, under the circumstances here shown, the plaintiff at the time of his injury had the status of a passenger for hire within the intendment of the Hepburn Act and that the release of liability contained on the pass upon which he was riding is, therefore, without legal effect as a bar to his right of action for the defendant’s negligence. Compare the Chatman case supra.

That leaves but the question as to whether the proofs support the trial court’s findings as to the defendant’s negligence and the plaintiff’s freedom from contributory negligence. We think that the opinion of the learned court below amply demonstrates that the evidence well justifies the findings of fact which come to us with the conclusiveness of a jury’s verdict.

The judgment of the District Court is affirmed.

1 North Carolina R. Co. v. Zachary, 232 U.S. 248, 256, 34 S.Ct. 305, 58 L.Ed. 591, Ann.Cas.1914C, 159; New York Central R. Co. v. Winfield, 244 U.S. 147, 149, 150, 37 S.Ct. 546, 61 L.Ed. 1045, L.R.A.1918C, 439, Ann.Cas.1917D, 1139; New York Central & H. R. R. Co. v. Tonsellito, 244 U.S. 360, 361, 37 S.Ct. 620, 61 L.Ed. 1194.

2 Erie R. Co. v. Welsh, 242 U.S. 303, 308, 37 S.Ct. 116, 61 L.Ed. 319; Shanks v. Delaware, L. & W. R. Co., 239 U.S. 556, 558, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A.1916C, 797; Illinois Central R. Co. v. Behrens, 233 U.S. 473, 478, 34 S.Ct. 646, 58 L.Ed. 1051, Ann.Cas.19140, 163; North Carolina R. Co. v. Zachary, 232 U.S. 248, 251, 34 S.Ct. 305, 58 L.Ed. 591, Ann.Cas.1914C, 159.

3 34 Stat. 584, 49 U.S.C.A. § 1(7).

4 Boering v. Chesapeake Beach R. Co., 193 U.S. 442, 24 S.Ct. 515, 48 L.Ed 742; Northern Pacific R. Co. v. Adams, 192 U.S. 440, 24 S.Ct. 408, 48 L.Ed. 513.

5 See Sheridan v. New Jersey & New York R. Co., Err. & App., 104 N.J.L. 622, 141 A. 811; Demarest v. Palisades Realty & Amusement Co., Err. & App., 101 N.J.L. 66, 127 A. 536, 38 A.L.R. 352; Morris v. West Jersey & S. R. Co., Err. & App., 87 N.J.L. 579, 94 A. 593; Kinney v. Central R. Co. of New Jersey, Err. & App., 34 N.J.L. 513, 3 Am.Rep. 265.

6 See senate Doc. No. 477, 59th Cong., 1st Sess., 40 Cong.Rec. 7821-7822 (1906).

7 The memorial of the Brotherhood of Locomotive Engineers, Brotherhood of Locomotive Firemen, Order of Railway Conductors, and Brotherhood of Railroad Trainmen, remonstrating against the passage of the anti-pass amendment to the Railroad Rate Bill (Hepburn Act) which the Vice President laid before the Senate on June 5, 1906, stated in part that,—

“In view of the absolute necessity to at times deadhead men over various parts of the road, the passage of such a law would greatly impede the operation of a railroad to say nothing of the extra expense, inconvenience, and hardship it would impose upon the employees.

“There are many cases where the runs of train and engine men terminate at other than their home stations; this is especially true as regards local, way-freight and work-train runs; and it is now the practice of many roads to issue free transportation to these men in order that they may spend their nights and Sundays at home. The passage of the provision in question would require these men to spend their nights and Sundays away from home for the reason that they could not afford to pay transportation back and forth.

“It is also a fact that a very large number of the shop and office forces of many railroads whose headquarters are in the large cities of necessity live in suburban towns along the road and they are given free transportation back and forth to their work.”

8 In the debate in the Senate on the first conference report, 40 Cong. Rec. 7852 (1906), Senator Foraker (of the majority) said:

“* * * After careful consideration the Senate determined that the employees for themselves and their families should have the privilege of securing passes from the railroads on which they are employed and other railroads that might be willing to give exchange passes. That has been part of the pay for their services rendered ever since we have been operating railroads in this country. It is a privilege which they merit. * * *.

“I would argue this at some length if I thought there was any necessity for it. I do not think there is any necessity, because almost every Senator, if not every Senator here, has received today, as I have, numerous telegrams protesting against this discrimination against them, or rather this denial to them of the rights and privileges which they have always enjoyed in this respect.

“* * * Senator Tillman [of the minority] * * * I have always been in favor of * * * the privilege that they now enjoy of being transported free and having their families transported free.”

9 Sec. 5 of the Federal Employers’ Liability Act provides that:

“Any contract, rule, regulation, or devise -whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void * *