Pedersen v. Delaware, Lackawanna & Western Railroad , 33 S. Ct. 648 ( 1913 )

Mr. Justice Van Devanter

delivered the opinion of the court.

This was an action under the Employers’ Liability Act¹ of April 22, 1908, 35 Stat. 65, c. 149, to recover for personal" injuries sustained -by the plaintiff through the negligence of a co-employé while both were in the defendant’s service. At the trial the Circuit Court refused to direct a verdict in the defendant’s favor, and the jury returned a verdict for the plaintiff, assessing his damages at $6,190. Subsequently the court, following a local statute (Penn. Laws, 1905, p. 286, c. 198), entered judgment for the defendant notwithstanding the verdict, on the ground that the latter was not sustained" by the evidence. 184 Fed. Rep. 737. The judgment was affirmed by the Circuit Court of Appeals, 197 Fed. Rep. 537, and the plaintiff sued out this writ of error.

The evidence, in that view of it which must be taken here, was to the following effect: The defendant was operating a railroad for the transportation of passengers and freight in interstate and intrastate commerce, and the plaintiff was an iron worker employed by the defendant in the alteration and repair of some of its bridges and tracks at or near Hoboken, New Jersey. On the afternoon of his injury the plaintiff and another employe, acting under the direction of their foreman, were carrying from a tool car to a bridge, known as the Duffield bridge, -some bolts or rivets which were to be used by them that ■night or very early the next morning in “repairing that bridge,” the repair to consist in taking out an existing girder and inserting a new one. The 'bridge could be reached only by passing over an intervening temporary bridge at James Avenue. These bridges were being regularly used in both interstate and intrastate commerce. While the plaintiff was carrying a sack of bolts or rivets over the James Avenue bridge, on his-way to the Duffield bridge, he .was ■ run down and injured by an intrastate passenger train, of the approach of which its engineer negligently failed to give any warning.

The Circuit Court ruled that an injury resulting from the negligence of a co-employé engaged in intrastate commerce was not within the terms of the Federal act, and the Circuit Court of Appeals, although disapproving that ruling, held that under the evidence it could not be said that the plaintiff was employed in interstate commerce and therefore he was riot entitled to recover under the act.

Considering the terms of the statute, there can be no doubt that a right of recovery thereunder arises only where the injury is suffered while the carrier is engaged in interstate commerce and while the employe is employed by the carrier in such commerce; but it is not essential, where the causal negligence is that of a co-employé, that he also be employed in such commerce, for, if the other conditions be present, the. statute gives a right of recovery for injury or death resulting from the negligence “of any of the . . . employés of such carrier,” and this includes an employé engaged in-intrastate commerce. Second Employers’ Liability Cases, 223 U. S. 1, 51.

That the defendant was engaged in interstate commerce is conceded, and so we are only concerned with the nature of the work in which the plaintiff was employed at the time of his injury. Among the questions which naturally arise in this connection are these: Was that work being done independently of the interstate commerce in which the defendant was engaged, or was. it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars, and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct “any defect or insufficiency ... in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment” used .in interstate commerce. But independently of the statute, we are of opinion that, the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to 'be in practice and' in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements and the nature of each determined regardless of its relation to others or to.the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged? See McCall v. California, 136 U. S. 104, 109, 111; Second Employers’ Liability Cases, supra, 6, 59; Zikos v. Oregon R. & Navigation Co., 179 Fed. Rep. 893, 897, 898; Central R. Co. of N. J. v. Colasurdo, 192 Fed. Rep. 901; Darr v. Baltimore & O. R. Co., 197 Fed. Rep. 665; Northern Pacific Ry. Co. v. Maerkl, 198 Fed. Rep. 1. Of course, we are not here concerned with the construction of tracks, bridges, engines or cars which-have not as yet become instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities and during their use as such.

True, a track or bridge may be used in both interstate and intrastate commerce, but when it is so used it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce.

The point is made that the plaintiff was not at the time of his injury engaged in removing the old girder and inserting the new one, but was merely carrying to the place where that work was to be done some of the materials to be used therein. We think there is no merit in this. It was necessary to the repair of the bridge that the materials be at hand, and the act of taking them there-was a part of that work. In other words, it was a minor task which was essentially a part of the larger one, as is the case when an engineer takes his engine from the roundhouse to the track on which are the cars he is to haul in interstate commerce. See Lamphere v. Oregon R. & Navigation Co., 196 Fed. Rep. 336; Horton v. Oregon, &c. Co., 130 Pac. Rep. 897; Johnson v. Southern Pacific Co., 196 U. S. 1, 21.

What has been said shows that there was evidence to sustain a finding that at the time of the plaintiff’s injury the defendant was engaged, and he was employed by it, in interstate commerce, and, as in other respects the case was one for the jury, the court rightly denied the defendant’s request that a verdict in its favor be directed. A motion for a new trial was interposed by the defendant, but no ruling was had upon it, doubtless because the court concluded that it could and should render judgment for the defendant on the evidence notwithstanding the verdict. In this the court was in error, first, because it was without authority so to do (Slocum v. New York Life Insurance Co., 228 U. S. 364), and, second, because the evidence did not warrant such a judgment. Unless the motion for a new trial was well taken, judgment should have been given for the plaintiff on the verdict, and, subject to that qualification, the plaintiff is now entitled to such a judgment.

The judgments of the Circuit Court and the Circuit Court of Appeals are reversed, and the case is remanded for further proceedings in accordance with this opinion.

Judgment reversed.

1 The act and the amendment of Anril 5,1910, aré printed in full in 223 U. S., p. 6.