Myers v. Norfolk & Western Railway Co.

Action for damages for a personal injury to a railroad employee, tried upon these issues:

1. Was the plaintiff injured by the negligence of the defendant? A. Yes.

2. Did the plaintiff by his own negligence contribute to his own injury? A. Yes.

3. Did the plaintiff execute the release offered in evidence by the defendant? A. Yes.

4. Was the plaintiff induced to sign the release by the fraud and deceit of the defendant's agent? A. Yes (but set aside on motion of defendant).

(344) 5. Was the plaintiff 21 years of age when he signed the receipt and has since ratified it? A. No.

6. What damage is the plaintiff entitled to recover of the defendant? A. $1,000.

From the judgment rendered, the defendant appealed. This action was tried under the act of Congress known as the Federal Employers' Liability Act.

The evidence tended to prove these facts: Plaintiff, a resident of Wilkes County, North Carolina, was employed by the defendant company, and in February, 1911, was working in West Virginia as a hand on an extra force on a work train. His business was to assist in surfacing up the roadbed, straighten out freight wrecks, and when there were slides, to clean them up. He was working under Mr. Shaw, general foreman of the work train, and under Mr. Lineberry, the assistant foreman. On Sunday, 12 February, 1911, the plaintiff was not working, but some time during the afternoon he attempted to catch a freight train which was passing the camp, and running from 6 to 8 miles an hour. The plaintiff claimed he was ordered by the foreman to catch this moving train to go for the mail. He failed to catch the train, and fell under it and had his leg cut off.

According to the plaintiff's own evidence, we do not think he was engaged in interstate commerce, and therefore his action was erroneously tried under the act of Congress. He testified that he was engaged solely in local repair work on the track in West Virginia as a workman on a work train.

At the time of his injury he was not engaged in any service whatever for the defendant. On Sunday, 12 February, the work-train hands were in camp, when plaintiff was told by Lineberry to catch a passing freight train and go to Naugatuck for the mail for the camp.

One of the essentials is that the employee when injured must be engaged in an act of interstate commerce. Horton was engineer of a train engaged in interstate commerce when injured, and so was Fleming,160 N.C. 196.

In Zachary's case, 156 N.C. 496, we held that the act (345) of Congress applies only to a carrier by rail while engaged in interstate commerce, and only to an employee suffering injury while he is employed by such carrier in such commerce. In that case we said:

"We do not think the Federal act applies, for the reason that the deceased at the time when killed was not employed by the Southern Railway, the lessee, in interstate commerce. At the time he was killed deceased was not engaged in an act of any kind of commerce. He was on the way to his boarding-house for a purpose entirely personal to himself and not on the carrier's business."

This case is directly supported by Federal authorities. Lamphere v. R.R., 116 C.C.A., 156; 193 Fed., 248. In this case it is held "that the employee at the time of the injury must have been employed in such interstate commerce."

It is also held that an extra conductor in the employ of a railroad company, directed, on reporting for work, to ride to another point within the same State for service on a work train working in that State, and who was injured while proceeding to his work train, was not at the time of the injury engaged in interstate commerce within the Employers' Liability Act.Feaster v. R. R., 197 Fed., 581; Pederson v. R. R., 197 Fed., 537. In this last case the subject is fully discussed by Buffington, Circuit Judge, and it is held that "the act applies only to such employees who at the time of the injury have a real and substantial connection with an act of interstate transportation," citing Employers' Liability cases, 207 U.S. 463; Adairv. U.S., 208 U.S. 161.

On the occasion when injured the plaintiff was not engaged in any kind of commerce. He had been directed by Lineberry to go to Naugatuck for the mail for the working force, and was injured while endeavoring to board a passing freight train for that purpose and no other.

It is contended that according to plaintiff's evidence, on the occasion when injured, he was not engaged in any act of service for defendant, and if Lineberry or Shaw directed him to catch the freight and go for the mail for the camp, they were not acting within the scope of their authority or in furtherance of the defendant's work. It is unnecessary to decide this now. Another trial may develop the (346) facts more fully.

New trial.

Cited: S. c., 166 N.C. 234.