Citation Numbers: 101 S.E. 216, 178 N.C. 558
Judges: HOKE, J.,
Filed Date: 12/3/1919
Status: Precedential
Modified Date: 1/13/2023
CLARK, C. J., concurring. The plaintiff sues, and insists on his right to recover, under the Federal Employer's Liability Act, and it is admitted that defendant company at the time was a railroad corporation engaged as a common carrier in transporting inter- and intrastate commerce. There were also facts in evidence tending to show that at the time of the killing, August, 1915, intestate was a member of a carpenter force in the employment of the defendant company, and as such was engaged in repairing a coal chute of defendant situated in the city of Richmond, Va., one of defendant's principal terminals, when the steps leading up on the chute gave way, causing intestate to fall 30 to 40 feet, and resulting in fatal injuries, from (559) which he soon thereafter died. The intestate, and the force with which he was at work, had been nailing plank on the body of the chute, the better to hold in the coal, and that at the precise time of the injury, as we understand the evidence, were replacing a defective stringer in the upper flight of the steps leading up on the chute. This coal chute was a large wooden structure used for storing or holding coal to be supplied to defendant's trains, some of which were engaged in transporting interstate and others intrastate passengers and freight, etc. There was also testimony tending to establish culpable negligence on the part of defendant — the proximate cause of the killing.
At the close of the testimony, the court, assuming the existence of facts tending to show negligence on the part of defendant, on motion, entered judgment of nonsuit and for the reason that the facts did not justify a recovery under the Federal statute on which the plaintiff bases his claim. Thereupon, plaintiff having duly excepted, appealed.
after stating the case: The Federal Employer's Liability Act, Federal Statutes Anno. 1909, Supp., p. 584, is designed and purports to regulate suits for physical injuries or death of *Page 600
employees of railroad companies, while engaged as common carriers of interstate commerce, wrongfully caused by the negligence of the officers, agents, or employees of such carriers, or by reason of negligence in its cars, engines, appliances, machinery, track, roadbed, works, bolts, wharves, or other equipment. It is now well established that this statute, when the same applies, affords the controlling and exclusive rule of liability in these cases, and authoritative decisions construing the same are to the effect that in order to its proper application both the carrier and the employee must be engaged in interstate commerce, and in reference to the latter, in a more recent case, the position is stated with approval as follows: "As to the employee the act applies where the particular service in which he is employed at the time of the injury is a part of interstate commerce." Ill. Cen. Ry. v. Behrens,
The cases on the subject hold further that the service of the employee should be properly considered a part of interstate commerce when his act at the time of the injury "was in aid of interstate transportation or so nearly related to it as to be practically a part of it." Philadelphia, etc., Ry. v. Smith, current Supreme Court Reporter U.S. p. 397; Kinzell v. Chicago, etc., Ry., advance opinion S.C., p. 477; Erie, etc., Ry. v. Winfried,
On the other hand, it was held in the case of Shanks v. Del., etc., Ry.,
And in the very recent case of New York Central Ry. v. Gallagher,Guardian,
True, the action of the Supreme Court on these petitions for certiorari
is not always necessarily intended to be controlling as a precedent, the exercise of revising power of the Court in this manner being to some extent discretionary (Hamilton Shoe Co. v. Wolf Bros.,
The case of B. O. R. R. v. Branson,
The plaintiff, who is insisting on his right of recovery under the Federal statute, having failed to bring his case within its provisions, has been properly nonsuited and the judgment of the Superior Court to that effect is affirmed. S. Louis, etc., Ry., v. Seal,
Affirmed.
Belch v. . R. R. , 176 N.C. 22 ( 1918 )
Shanks v. Delaware, Lackawanna & Western Railroad , 36 S. Ct. 188 ( 1916 )
St. Louis, San Francisco & Texas Railway Co. v. Seale , 33 S. Ct. 651 ( 1913 )
Illinois Central Railroad v. Behrens , 34 S. Ct. 646 ( 1914 )
Chicago, Burlington & Quincy Railroad v. Harrington , 36 S. Ct. 517 ( 1916 )
Lehigh Valley Railroad v. Barlow , 37 S. Ct. 515 ( 1917 )
Delaware, Lackawanna & Western Railroad v. Yurkonis , 35 S. Ct. 902 ( 1915 )
Pecos & Northern Texas Railway Co. v. Rosenbloom , 36 S. Ct. 390 ( 1916 )
Hamilton-Brown Shoe Co. v. Wolf Brothers & Co. , 36 S. Ct. 269 ( 1916 )
Pedersen v. Delaware, Lackawanna & Western Railroad , 33 S. Ct. 648 ( 1913 )