I dissent. It is conceded that the facts of this case bring it squarely within the rule laid down in Southern Pacific Co.
v. Pillsbury, 170 Cal. 782, [L.R.A. 1916E, 916, 151 P. 277] (which will hereinafter
be referred to as the Ruth case), and that if we follow that case the award should be annulled. The Ruth case, however, is overruled by the main opinion upon the theory that the supreme court of the United States in Minneapolis St. Louis R. R. Co.
v. Winters, 242 U.S. 353, [Ann. Cas. 1918B, 54, 61 L.Ed. 358,34 Sup. Ct. Rep. 170, see, also, Rose's U.S. Notes] (which will hereinafter be referred to as the Winters case), has determined the same matter directly contrary to the rule laid down by us in the Ruth case. This view is entertained, notwithstanding the fact that the supreme court of the United States declined to issue a writ of certiorari to review the decision of this court in the Ruth case, and that this action was had after the decision in the Winters case. It seems to me that there is a clear distinction between the Winters case and the Ruth case. The facts in the Winters case were stipulated. It appears therefrom that the engine "had been used in the hauling of freight trains over defendant's line, . . . which freight trains hauled both intrastate and interstate commerce, . . . it was so used after the plaintiff's injury." It will be observed that the stipulation does not cover the customary use of this engine. It had been used before and was used after the accident in hauling intrastate and interstate commerce. It was under this condition of the record that the court said: "Its next work, so far as appears, might be interstate or confined to Iowa, as it should happen. At the moment it was not engaged in either. Its character as an instrument of commerce depended upon its employment at the time not upon remote probabilities or upon accidental later events." Of course, when an engine is laid up in a machine-shop for repairs it is not actually engaged in interstate commerce, and if its character as an instrument of commerce is to be determined by what it is doing when it is doing nothing, it follows that no engine while undergoing repairs is engaged in interstate commerce. It is clear from the opinion that no such result was intended, for it is expressly inferred that had it been "interrupted in an interstate haul to be repaired and go on" it would have been held that the engine was employed in interstate commerce, and those repairing it engaged therein. Again it is said: "This is not like the matter of repairs upon a road permanently devoted to commerce among the states."
The inference in this statement is that if the engine had been permanently devoted to interstate commerce, as is a bridge, that those in its repair would be engaged in interstate commerce. In this case we are dealing with a switch engine which, by reason of its construction and the character of its business, is permanently devoted to the handling of freight and passenger-cars in the railroad-yards in San Francisco, and which is used for both interstate and intrastate commerce. There is no time when it could be said that the engine while in actual operation was not engaged in interstate commerce. Why, then, is it any less an instrumentality of interstate commerce than a bridge in the main line of a railway which most of its time is unused and when in use is traveled indiscriminately by interstate and intrastate commerce? As pointed out in the main opinion, in Philadelphia B. W. R. R. Co. v. Smith,250 U.S. 101, [63 L.Ed. 869, 39 Sup. Ct. Rep. 396], the cook of a construction crew engaged in repairing a bridge upon a railroad engaged in interstate business was held to be engaged in such interstate commerce while serving as a cook. The court said: "The significant thing, in our opinion, is that he was employed by the defendant to assist, and was assisting, the work of the bridge carpenters by keeping their bed and board close to their place of work." It is further said: "Taking it to be settled by the decision of this court in Pedersen v. Delaware etc. R. R.Co., 229 U.S. 146, 152, [Ann. Cas. 1914C, 153, 57 L.Ed. 1125,33 Sup. Ct. Rep. 648, 3 N.C.C.A. 779, see, also, Rose's U.S. Notes], that the repair of bridges in use as instrumentalities of interstate commerce is so closely related to such commerce as to be in practice and in legal contemplation a part of it, it of course is evident that the work of the bridge carpenters in the present case was so closely related to defendant's interstate commerce as to be in effect a part of it." If we turn to the case of Pedersen v. Delaware etc. R. R. Co., supra,
we will see that the repair of engines and cars and the repair of bridges and tracks are placed upon exactly the same footing. It was there said: "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 indemanding that all of these instrumentalities be kept inrepair. 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 itscars, 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? (Citing cases.) 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." (Italics ours.) In the Pedersen case the rule adopted by the supreme court of the United States applied with equal force to a bridge and an engine. In the Ruth case we made the application of the principle there stated to an engine. I think that this case was correctly decided and that the Winters case was not a departure from the rule laid down by us or the rule laid down by the supreme court of the United States in the Pedersen case, but depends upon its own peculiar facts and the narrowness of the stipulated facts. The whole point of the Winters case is that the supreme court of the United States felt itself unable to say, under the admitted facts, that the engine there involved was permanently used in,
or, if I may use the expression, dedicated to interstate commerce. Here we have an engine which, by reason of its peculiar construction, is and at all times has been as much dedicated to interstate commerce as is a bridge upon the main track of a railroad. In the Pedersen case it was assumed that engines and cars were obviously instrumentalities used in interstate commerce, and from that predicate it was argued that a bridge was equally such an instrumentality. The main opinion assumes that a bridge is such an instrumentality, but denies that an engine undergoing repairs is such an instrumentality, notwithstanding the fact that it was at all times used in interstate commerce.
I dissent for the further reason that we have expressly decided the very question involved in this case; that the principle involved is well settled and of universal application; that the only difficulty is that of applying it to the specific facts in each case; that we have already made such an application; that the supreme court of the United States has never undertaken to change or modify the general rule; that the Winters case is different in its facts, and that, so far as we can determine from the published opinions of the supreme court of the United States, they have distinctly approved our decision in the Ruth case. I think we ought not to assume that the Ruth case is reversed by reason of the holdings in the later cases of the supreme court of the United States, which merely apply the well-settled rule to the peculiar facts of each case, which are in every instance different from those in this case.
Rehearing denied.
All the Justices concurred, except Shaw, J., and Sloane, J., who were absent.