commerce.99 While the federal statute limiting the number of hours that an employee of a railroad shall remain on duty' is confined in its application to employees actually engaged in the movement of interstate traffic," it embraces employees engaged in any part of interstate transportation.3 [§ 51] (c) Liability for Death or Injury-aa. In General. By virtue of its power to regulate, so far as foreign and interstate commerce is concerned, the relation of master and servant existing between railroads and their employees, congress may regulate the liability of the carrier for personal injuries received by employees while engaged in interstate commerce.5 [§ 52] bb.. Interstate Commerce as Involved in Application of Federal Employers' Liability Act(aa) Necessity and Effect of Carrier and Employee Being Engaged in Interstate Commerce. Under the Federal Employers' Liability Act of 1908, a right of recovery arises only where the injury is suffered while the carrier is engaged in interstate commerce, and while the employee is employed by the carrier in such commerce, but it is not essential, where the casual negligence is that of a coemployee, that he also be employed in such commerce.9 Conversely, the case is brought within the federal stat etc.. R. Co., 169 Fed. 942 [aff 223 U. | motive engine during the excess S. 745 mem, 32 SCt 533 mem, 56 L. hours, does not affect the result. ed. 639 mem]: Shanks v. Delaware, etc.. R. Co., 163 App. Div. 565, 148 NYS 1034. Instances of exercise of power see infra § 90. 99. Wilson v. New, (U. S.) 37 SCt 298; Baltimore, etc., R. Co. v. Interstate Commerce Commn., 221 U. S. 612, 31 SCt 621, 55 L. ed. 878 (holding that, by virtue of its power to reguLate foreign and interstate commerce, congress may enact laws for the safeguarding of the persons and property that are transported in the commerce and of those that are employed in transporting them; that the length of hours of service has direct relation to the efficiency of the human agencies on which protection to life and property necessarily depends; and that it was competent for congress to endeavor to reduce the strain of excessive hours of duty or the part of engineers, conductors, telegraphers, and other employees); State v. Chicago, etc., R. Co., 136 Wis. 407, 117 NW 686, 19 LRANS 326. [a] Eight hour standard.-"We put the question as to the eight-hour standard entirely out of view, on the ground that the authority to permanently establish it is so clearly sustained as to render the subject not disputable." Wilson V. New, (U. S.) 37 SCt 298, 301. Constitutionality of Adamson Law see infra § 90. Validity of the Hours of Service Act see infra § 90. 1. 34 U. S. St. at L. 1415 c 2939. 2. Baltimore, etc., R. Co. v. Interstate Commerce Commn., 221 U. S. 612, 31 SCt 621, 55 L. ed. 878; U. S. V. Chicago, etc., R. Co., 218 Fed. 701 (holding the statute inapplicable to an employee on a railroad "work train" operated wholly within one state, by a railroad corporation engaged in interstate commerce, on a line of railroad constituting a part of the company's through highway of interstate commerce); State v. Chicago, etc., R. Co., 136 Wis. 407, 117 NW 686, 19 LRANS 326. 3. Denver, etc., R. Co. v. U. S., 236 Fed. 685; St. Joseph, etc., R. Co. v. U. S., 232 Fed. 349, 146 CCA 397; U. S. v. Chicago, etc., R. Co., 197 Fed. 624. [a] Thus (1) employees of a railroad company engaged in hauling freight from an intermediate point on its line to another point, where it is taken up by 'regular trains for interstate shipment, are employed in interstate commerce, within the meaning of the act of March 4, 1907, 2, regulating the hours of service of employees. U. S. v. Chicago, etc., R. Co., 197 Fed. 624. (2) "That the fireman on an interstate train is within the meaning of the act is not questioned, and cannot well be, but it is claimed that the interstate movement had ceased, as the material in the cars was to be used on the tracks of the defendant in the state of Kansas only, the train was no longer in interstate commerce. This contention is untenable, as the train had not yet reached its destination, and was to be carried further. That the fireman, in this instance, had been detailed to watch the loco the The fact that this fireman was employed on a work tra'n was wholly immaterial, if it was in fact an interstate train. The act of Congress makes no such exception, and courts certainly are powerless to do So. The gist of the offense is that the carrier is engaged in the transportation of passengers or property by railroad from one state to other, and that the employé is actually engaged in or connected with the movement of any train. 'Any train' is certainly broad enough to include a work train." St. Joseph, etc., R. Co. v. U. S., 232 Fed. 349, 352, 353, 146 CCA 397. 4. See supra § 49. an 5. Howard v. Illinois Cent. R. Co., 207 U. S. 463, 28 SCt 141, 52 L. ed. 297 [aff 148 Fed. 9971; Zikos v. Oregon R., etc., Co., 179 Fed. 893; Kelley v. Great Northern R. Co., 152 Fed. 211; Spain v. St. Louis, etc., R. Co., 151 Fed. 522; State v. Chicago, etc., R. Co., 136 Wis. 407, 117 NW 686, 19 LRANS 326. Validity of particular federal liability acts passed by congress see infra § 90. 6. 35 U. S. St. at L. 65 c 149. Actions under Federal Employers' Liability Act see Master and Servant. Effect of this statute on state statutes covering same subject see infra § 101. 7. U. S.-Raymond V. Chicago, etc., R. Co., 37 SCt 268 [aff 233 Fed. 239]; Shanks v. Delaware, etc., R. Co., 239 U. S. 556, 36 SCt 188, 60 L. ed. 436 [aff 214 N. Y. 413, 108 NE 644, AnnCas1916E 467]; Pedersen v. Delaware, etc., R. Co., 229 U. S. 146, 33 SCt 648, 57 L. ed. 1125, AnnCas 1914C 153 [rev 197 Fed. 537, 117 CCA 33 (aff 184 Fed. 737)]; Lucchetti v. Philadelphia, etc., R. Co., 233 Fed. 137; Nordgard v. Marysville, etc., R. Co., 218 Fed. 737, 134 CCA 415 [foll Bay v. Merrill, etc., Logging Co., 220 Fed. 295, 136 CCA 277 (aff 211 Fed. 721)]; Baltimore, etc., R. Co. v. Darr, 204 Fed. 751, 124 CCA 565. Ill-Mitchell v. Louisville, etc., R. Co., 194 Ill. A. 77. Mo.-Kiser v. Metropolitan St. R. Co., 188 Mo. A. 169, 175 SW 98. Mont.-Alexander v. Great Northern R. Co., 51 Mont. 565, 154 P 914. Okl.-Atchison, etc., R. Co. v. Pitts, 44 Okl. 604, 145 P 1148. Tex.-Missouri, etc., R. Co. v. Pace, (Civ. A.) 184 SW 1051; Chicago, etc.. R. Co. v. Cosio, (Civ. A.) 182 SW 83; Missouri, etc.. R. Co. v. Fesmire, (Civ. A.) 150 SW 201. W. Va.-Watts v. Ohio Valley Electric R. Co., 88 SE 659. Wis.-Gray v. Chicago, etc., R. Co., 153 Wis. 637, 142 NW 505. 8. U. S.-Raymond V. Chicago, etc., R. Co., 37 SCt 268 [aff 233 Fed. 239]; Shanks v. Delaware, etc., R. Co., 239 U. S. 556, 36 SCt 188, 60 L. ed. 436 [aff 214 N. Y. 413, 108 NE 644. AnnCas1916E 467 and note]; Pedersen v. Delaware, etc., R. Co., 229 U. S. 146, 33 SCt 648, 57 L. ed. 1125, AnnCas1914C 153 [rev 197 Fed. 537, 117 CCA 33 (aff 184 Fed. 737)]; Lucchetti v. Philadelphia, etc., R. Co., 233 Fed. 137; Illinois Cent. R. Co. v. Rogers, 221 Fed. 52, 136 CCA 530; 8 Pennsylvania R. Co. v. Knox, 218 Fed. 748, 134 CCA 426; Jackson v. Chicago, etc., R. Co., 210 Fed. 495; Baltimore, etc., R. Co. v. Darr, 204 Fed. 751. 124 CCA 565. Ala-Louisville, etc., R. Co. v. Carter, 70 S 655. Ark.-St. Louis, etc., R. Co. V. Hesterly, 98 Ark. 240, 135 SW 874. Ill-Mitchell v. Louisville, etc.. R. Co., 194 Ill. A. 77. etc., R. Co. V. Feightner, (A.) 114 NE 659. Ind.-Chicago, Kan.-Barker v. Kansas City, etc., R. Co., 94 Kan. 176, 146 P 358; Cole v. Atchison, etc., R. Co., 92 Kan. 132, 139 P 1177; Barker v. Kansas City, etc., R. Co., 88 Kan. 767, 129 P 1151, 43 LRANS 1121. Ky.-Louisville, etc., R. Co. V. Strange, 156 Ky. 439, 161 SW 239. La.-La Casse v. New Orleans, etc., R. Co., 135 La. 129, 64 S 1012. Mich. Fernette v. Pere Marquette R. Co., 175 Mich. 653, 141 NW 1084, 144 NW 834. Mo.-Miller v. Kansas City Western R. Co., 180 Mo. A. 371, 168 SW 336. Mont. Alexander v. Great Northern R. Co., 51 Mont, 565, 154 P 914. N. Y.-Bogart v. New York Cent., etc. R. Co., 171 App. Div. 652, 157 NYS 420; Knowles v. New York, etc., R. Co., 164 App. Div. 711, 150 NYS 99. N. C.-Myers v. Norfolk, etc., R. Co., 162 N. C. 343, 78 SE 280, 48 LRA NS 987 and note. Okl.-Atchison, etc., R. Co. v. Pitts, 44 Okl. 604. 145 P 1148. Air S. C.-Padgett v. Seaboard Line R. Co., 99 S. C. 364, 83 SE 633. Tex.-Missouri, etc., R. Co. v. Pace, (Civ. A.) 184 SW 1051; Chicago, etc., R. Co. v. Cosio, (Civ. A.) 182 SW 83. W. Va.-McKee V. Ohio Valley Electric R. Co., 88 SE 616. Wis. Sullivan v. Chicago, etc., R. Co., 163 Wis. 583, 158 NW 321; Zavitovsky v. Chicago, etc., R. Co., 161 Wis. 461, 154 NW 974; Gray v. Chicago, etc., R. Co., 153 Wis. 637, 142 NW 505. [a] A street car employee engaged at the time of his injury in operating a car whose run is between points in the same state and which is not carrying interstate passengers is not entitled to the protection of the Federal Employers' Liability Act, although the carrier also operates connecting lines engaged in interstate commerce, as at the time of the injury neither the employee nor the carrier is engaged in interstate commerce. Kiser v. Metropolitan St. R. Co., 188 Mo. A. 169, 175 SW 98; Watts v. Ohio Valley Electric R. Co., (W. Va.) 88 SE 659. Commencement, suspension, and termination of relation of master and servant see Master and Servant [26 Cyc 1086]. Particular services held to constitute or not to constitute interstate commerce see infra §§ 54-57. 9. Pedersen v. Delaware, etc., R. Co., 229 U. S. 146, 33 SCt 648. 57 L. ed. 1125, AnnCas1914C 153 [rev 197 Fed. 537, 117 CCA 33 (aff 184 Fed. 737)] (holding that the statute gives a right of recovery for injury or death resulting from the negligence "of any of the employees of such carrier" and this includes an 11 ute where, at the time of injury, the carrier is engaged in interstate commerce,10 and the employee is employed by the carrier in interstate commerce,' and a right of recovery exists where the facts otherwise show liability under the statute.12 [53] (bb) General Tests of Employment in Interstate Commerce. From the mere fact that a railroad company is an interstate, as well as an intra-state, public carrier of freight and passengers, and therefore is engaged in interstate commerce, it does not follow that the work in which its servant was engaged when killed or injured was interstate commerce. In considering whether the employee was engaged in interstate commerce, the question for determination is whether the work in which he was engaged at the time of injury was being done independently of the interstate commerce in which the carrier was engaged, or whether 13 employee engaged in intra-state commerce); Louisville, etc., R. Co. V. Walker, 162 Ky. 209, 172 SW 517. 10. Ú. S.-Chicago, etc., R. Co. v. Wright, 239 U. S. 548, 36 SCt 185, 60 L. ed. 431 [aff 94 Nebr. 317, 143 NW 220, 96 Nebr. 87, 146 NW 1024]; North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 SCt 305, 58 L. ed. 591, Ann Cas1914C 159 [rev 156 N. C. 496, 72 SE 858] (holding that the lessor of an intra-state railroad to an interstate railroad is, through its lessee, a common carrier engaged in interstate commerce, within the Employers' Liability Act, where it is responsible for the negligence of its lessee; and holding further that a carrier is engaged in interstate commerce, within the meaning of the Employers' Liability Act, when it is hauling empty freight cars from one state to another); St. Louis Merchants' Bridge Terminal R. Co. v. Schuerman, 237 Fed. 1; Chicago, etc., R. Co. v. Kindlesparker, 234 Fed. 1, 148 CCA 17; Canadian Pac. R. Co. v. Thompson, 232 Fed. 353, 146 CCA 401; Lombardo v. Boston, etc., R. Co., 223 Fed. 427. Ark.-Long v. Lusk, 186 SW 601. Ga.-Southern R. Co. v. Puckett, 16 Ga. A. 551, 85 SE 809. Ill-Wagner v. Chicago, etc., R. Co., 180 III. A. 196. Ind.-Vandalia R. Co. v. Holland, 183 Ind. 438, 108 NE 580. Kan.--Barker v. Kansas City, etc., R. Co., 88 Kan. 767, 129 P 1151, 43 LRANS 1121 (holding that an interstate railroad while moving cars of water or coal over its line from one state to another for use in its own engines is engaged in interstate commerce, within the Federal Employers' Liability Act regulating liability of railroads so engaged for injuries to employees). Mo.-McAdow V. Kansas City Western R. Co., (A.) 164 SW 188. N. C.-Lloyd v. Southern R. Co., 166 N. C. 24, 81 SE 1003. Tex. Kansas City, etc., R. Co. v. Pope. (Civ. A.) 152 SW 185 [reh den 153 SW 163] (holding that a carrier was engaged in interstate commerce while switching cars from a train which had just been brought in from another state). As to when railroads generally are engaged in interstate commerce generally see supra § 48. 11. U. S.-Chicago, etc., R. Co. v. Wright, 239 U. S. 548, 36 SCt 185, 60 L. ed. 431 [aff 94 Nebr. 317, 143 NW 220, 96 Nebr. 87, 146 NW 1024]; New York Cent., etc.. R. Co. v. Carr. 238 U. S. 260, 35 SCt 780. 59 L. ed. 1298 [aff 157 App. Div. 941, 142 NYS 1111]; St. Louis Merchants' Bridge Terminal R. Co. v. Schuerman, 237 Fed. 1. Ala. Alabama Great Southern R. Co. v. Skotzy, 71 S 335. Ark.-Long v. Lusk, 186 SW 601; St. Louis Southwestern R. Co. v. Anderson, 117 Ark. 41, 173 SW 834. it was so closely connected therewith as to be a part of it.14 Stated in another way, the true test of employment in interstate commerce is: Was the employee, at the time of the injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it ?15 Another test applied in some cases is to consider the effect of the employee's injury on the course and current of interstate commerce and to determine whether his relation to traffic was so close and direct that his injury tended to stop or delay the movement of a train engaged in interstate commerce.16 [54] (cc) Work Having Little or No Connection with Interstate Commerce. A person is not engaged in interstate commerce where, at the time of injury, his work bears no connection whatever to interstate commerce, or only a remote connection.18 Ga.-Southern R. Co. v. Puckett, 16 Ga. A. 551, 85.SE 809. Ill.-Wagner V. Chicago, etc., R. Co., 180 Ill. A. 196. Iowa.-Byram v. Illinois Cent. R. Co., 172 Iowa 631, 154 NW 1006; Ross v. Sheldon, 154 NW 499. Ky.-Norfolk, etc., R. Co. v. Short, 171 Ky. 647, 188 SW 786; Thompson v. Cincinnati, etc., R. Co., 165 Ky. 256, 176 SW 1006, AnnCas1917A 266. Minn.-Peery v. Illinois Cent. R. Co., 128 Minn. 119, 150 NW 382, 1103. Mo.-Noel v. Quincy, etc.. R. Co., (A.) 182 SW 787; Hearst v. St. Louis, etc., R. Co., 188 Mo. A. 36, 173 SW 86. N. Y.-Whalen v. New York Cent., etc., R. Co., 159 NYS 244. N. D.-Hein v. Great Northern R. Co.. 159 NW 14. Tex.-Texas, etc., R. Co. v. White, (Civ. A.) 177 SW 1185. Wash.-Aldread v. Northern Pac. R. Co., 160 P 429. Illustrations see infra §§ 53-57. 12. See Master and Servant. 13. Schaeffer v. Illinois Cent. R. Co., 172 Ky. 338, 189 SW 237. 14. U. S.-Pedersen v. Delaware, etc., R. Co., 229 U. S. 146, 33 SCt 648, 57 L. ed. 1125. AnnCas1914C 153; Philadelphia, etc., R. Co. v. McConnell, 228 Fed. 263. 142 CCA 555; Columbia, etc., R. Co. v. Sauter, 223 Fed. 604, 139 CCA 150; Eng v. Southern Pac. Co., 210 Fed. 92; Law v. Illinois Cent. R. Co., 208 Fed. 869, 126 CCA 27, LRA1915C 17. Ala-Western R. Co. v. Mays, 72 S 641. Cal.-Southern Pac. Co. v. Pillsbury, 170 Cal. 782, 151 P 277, LRA 1916D 916. Kan.-Thornbro V. Kansas City, etc., R. Co., 92 Kan. 681, 142 P 250, 91 Kan. 684, 139 P 410, AnnCas1915D 314; Barker v. Kansas City, etc., R. Co., 88 Kan. 767, 129 P 1151, 43 LRA NS 1121. Ky. Schaeffer v. Illinois Cent. R. Co., 172 Ky. 338, 189 SW 237; Illinois Cent. R. Co. v. Kelly, 167 Ky. 745, 181 SW 375; Chesapeake, etc., R. Co. v. Kornhoff, 167 Ky. 353, 180 SW 523; Thompson v. Cincinnati, etc., R. Co.. 165 Ky. 256, 176 SW 1006, AnnCas 1917A 266. Minn.-Nash v. Minneapolis, etc., R. Co., 131 Minn. 166, 154 NW 957; Peery v. Illinois Cent. R. Co., 123 Minn. 264, 143 NW 724. Wis.-Graber v. Duluth, etc., R. Co., 159 Wis. 414, 150 NW 489. Necessity for particular service in which employee is engaged at time of injury being of interstate character see infra § 55. Particular work and services considered see infra §§ 54-57. 15. New York Cent. R. Co. V. White, (U. S.) 37 SCt 247 [aff 169 App. Div. 903, 152 NYS 1149]; Chicago, etc., R. Co. v. Harrington, 241 U. S. 177, 36 SCt 517, 60 L. ed. 941; Shanks v. Delaware, etc., R. Co., 239 U. S. 556, 36 SCt 188, 60 L. ed. 436 17 [aff 214 N. Y. 413, 108 NE 644, Ann Cas1916E 467 and note] (reviewing cases); Pryor v. Bishop, 234 Fed.__9; Bruckshaw v. Chicago, etc., R. Co., 173 Iowa 207, 155 NW 273; Cincinnati, etc., R. Co. v. Hansford, (Ky.) 190 SW 690. 16. Lamphere v. Oregon R., etc.. Co., 196 Fed. 336, 116 CCA 156, 47 LRANS 1; Chicago, etc., R. Co., v. Feightner, (Ind.) 114 NE 659; Thornbro v. Kansas City, etc., R. Co., 91 Kan. 684. 139 P 410, AnnCas1915D 314, 92 Kan. 681, 142 P 250 (reviewing cases). 17. Myers v. Norfolk, etc., R. Co., 162 N. C. 343, 78 SE 280, 48 LRANS 987 (where plaintiff was held not to be engaged in interstate commerce, as he was engaged solely in local repair work as a workman on a work train, and, at the time of his injury, which happened on Sunday, he was not engaged in any kind of commerce. but was attempting to catch a passing freight train to go to a nearby town to get the mail). And see cases infra this note. [a] An assistant gardener, employed by a railroad company engaged in interstate commerce to cultivate the yard about one of its stations and to gather trash and burn it, is not engaged in interstate commerce. Galveston, etc., R. Co. v. Chojnacky, (Tex. Civ. A.) 163 SW 1011. [b] Services after termination of transportation-An employee is not engaged in interstate commerce: (1) When he is unloading steel rails from a car after they have reached their destination. Pierson v. New York, etc., R. Co., 83 N. J. L. 661, 85 A 233. (2) When, as hostler, he is engaged generally in taking care of engines after they have finished their runs and, at the time of his injury, is doing nothing along the line of his employment. Gray v. Chicago, etc., R. Co., 153 Wis. 637, 142 NW 505. 18. New York Cent. R. Co. V. White, (U. S.) 37 SCt 247 [aff 169 App. Div. 903, 152 NYS 1149]; Shanks v. Delaware, etc., R. Co., 239 U. S. 556, 36 SCt 188, 60 L. ed. 436; Salmon v. Southern R. Co., 133 Tenn. 223, 180 SW 165; Killes v. Great Northern R. Co., (Wash.) 161 P 69. [a] Altering location of fixture in machine shop.-"The Railroad Company was engaged in both interstate and intrastate transportation and was conducting an extensive machine shop for repairing parts of locomotives used in such transportation. While employed in this shop Shanks was injured through the negligence of the company. Usually his work consisted in repairing certain parts of locomotives, but on the day of the injury he was engaged solely in taking down and putting into a new location an overhead counter-shafta heavy shop fixture-through which power was communicated to some of [§ 55] (dd) Service at Precise Time of Injury. To bring a case within the Federal Employers' Liability Act, so as to authorize a recovery, it is not sufficient that the general employment of the person injured be of an interstate character or that he be engaged in interstate commerce at a time other than that of his injury, but he must be engaged in interstate commerce at the precise time of his injury. In other words, the particular service in which he is engaged when injured must be of an interstate character;19 and, according to general principles, the employee cannot recover when, at the machinery used in the repair [b] Unloading paint to be stored for future use in painting interstate cars. "The act of unloading the paint was not connected with interstate commerce with sufficient immediateness to bring the case within the federal act. The paint was to be used on cars, designed both for interstate and intrastate service, but how soon this use was to be made does not appear. The paint was simply stored to be used when needed. It is not shown whether any need developed within a week or a month, or at all." Salmon v. Southern R. Co., 133 Tenn. 223, 237, 180 SW 165. movement [c] Building painter's scaffold. "The building of a scaffold in a freight shed upon which a workman is to stand while painting the roof has no direct or immediate connection with interstate commerce, nor is it a necessary incident in furthering the of interstate freight. It may be admitted that the freight shed is an instrumentality made use of in interstate commerce, but the respondent was not at work upon the freight shed. His act was at least one step removed from any connection with interstate commerce or any of its instrumentalities either directly or indirectly. He was building a scaffold which was neither a necessary nor any part of the freight shed. Το that while say painting the roof the workman was engaged in interstate commerce, but not so engaged while building the scaffold, is a sound distinction under the authorities which hold that a workman may often and rapidly during the same day pass from one class of employment to another." Killes v. Great Northern R. Co., (Wash.) 161 P 69, 71. 19. U. S.-Chicago, etc., R. Co. v. Harrington, 241 U. S. 177, 36 SCt 517, 60 CCA 941 [aff (Mo. A.) 180 SW 443]; Shanks v. Delaware, etc., R. Co., 239 U. S. 556, 36 SCt 188, 60 L. ed. 436; Illinois Cent. R. Co. V. Behrens, 233 U. S. 473, 34 SCt 646, 58 L. ed. 1051, AnnCas1914C 163 and note [rev 192 Fed. 5811; Erie R. Co. V. Van Buskirk, 228 Fed. 489, 143 CCA 71; Boyle v. Pennsylvania R. Co., 228 Fed. 266, 142 CCA 558 [aff the time of his injury, the relation of master and servant does not exist, as where it has not commenced, or has been suspended or terminated.20 In the notes will be found illustrative cases which, conceding that the relation of master and servant exists21 and that the general employment of the person injured is partly or wholly of an interstate character, and considering the matter especially in reference to the particular service being performed at the time of injury, show the various situations by virtue of which an employee is held to be engaged 22 or not engaged in interstate commerce when 221 Fed. 453]; Shanley v. Philadelphia, etc., R. Co., 221 Fed. 1012. Compare Pittsburgh, etc., R. Co. v. Glinn, 219 Fed. 148, 135 CCA 46 (holding an employee to be engaged in interstate commerce where he is engaged generally in the indiscriminate handling of both intra-state and interstate freight, although, at the time of his injury, the switch engine with which he was connected as a member of the switching crew, was not hauling any cars). engaged in moving several cars, all loaded with intra-state freight, from one part of a city to another. 20. See Master and Servant [26 Cyc 1086]. 21. Right of action of employee injured while going to or from work, or temporarily suspending work see Master and Servant [26 Cyc 1086]. 22. See cases infra this note. Ill.-Chicago, etc., R. Co. v. Illinois Industrial Bd., 273 Ill. 528, 113 NE 80, LRA1916F 540; Patry v. Chicago, etc., R. Co., 265 Ill. 310, 106 NE 843. Ind.-Chicago, etc., R. Co. v. Feight-gaged in interstate and those in intraner. (A.) 114 NE 659. Ky.-Schaeffer v. Illinois Cent. R. Co., 172 Ky. 338, 189 SW 237; Illinois Cent. R. Co. v. Kelly, 167 Ky. 745, 181 SW 375. Mass.-Corbett v. Boston, etc., R. Co., 219 Mass. 351, 107 NE 60. Mont.-McBain V. Northern Pac. R. Co., 52 Mont. 578, 160 P 654. N. Y.-Fairchild v. Pennsylvania R. Co., 170 App. Div. 135, 155 NYS 751; McAuliffe v. New York Cent., etc., R. Co., 164 App. Div. 846, 150 NYS 512 (interpreting the opinion in Illinois Cent. R. Co. v. Behrens, supra, this note, to ignore past service, to put from view future service, and to isolate completely the service at the time of injury for the purpose of determining whether then and there plaintiff was employed in interstate commerce). And see Knowles V. New York, etc., R. Co., 164 App. Div. 711, 150 NYS 99 (holding it necessary, where an employee was killed while on his way to work as a switchman assigned regularly, to a switch engine used indiscriminately in interstate and intra-state commerce, to establish that the switch engine was used exclusively during that particular shift in interstate commerce, or that it was so used at the very outset of the shift). "As the question is with respect to the employment of the decedent at the time of the injury (Illinois Cent. R. Co. v. Behrens, 233 U. S. 473, 478, 58 L. ed. 1051, AnnCas1914C 163), it is not important whether he had previously been engaged in interstate commerce, or that it was contemplated that he would be so engaged after his immediate duty had been performed." Chicago, etc., R. Co. v. Harrington, 241 U. S. 177, 179, 36 SCt 517, 60 L. ed. 941. "The question for decision is, Was Shanks at the time of the injury employed in interstate commerce within the meaning of the employers' liability act? What his employment was on other occasions is immaterial, for, as before indicated, the act refers to the service being rendered when the injury was suffered." Shanks v. Delaware, etc., R. Co., 239 U. S. 556, 36 SCt 188, 60 L. ed. 436, LRA1916C 797. [a] The leading case on this point is Illinois Cent. R. Co. v. Behrens, 233 U. S. 473, 34 SCt 646, 58 L. ed. 1051, AnnCas1914C 163 and note [rev 192 Fed. 581] where recovery was denied to a member of a switching crew engaged generally in the movement of cars, some containing interstate and some intra-state freight, but at the time of the injury [a] Illustrations.—(1) The engineer of a switch engine, who was switching coal cars containing an interstate shipment of coal so that they could be dumped into the railroad company's bunkers from which the railroad's locomotives, both those enstate commerce, would coal, was engaged in interstate commerce, within the purview of the Federal Employers' Liability Act. Barlow V. Lehigh Valley R. Co., 158 App. Div. 768, 143 NYS 1053 [aff 214 N. Y. 116, 107 NE 814]. (2) An employee of an interstate carrier while taking a road engine from one state to a repair shop in another was engaged in interstate commerce within the Federal Employers' Liability Act, although the train order directed that his engine be run "extra" between two points in the same state. "It is entirely clear that taking the road engine from Phillipsburg, Kansas, to Council Bluffs, Iowa, was an act of interstate commerce, and that the intestate, while participating in that act, was employed in such commerce. That the engine was not in commercial use but merely on the way to a repair shop is immaterial, It was being taken from one State to another and this was the true test of whether it was moving in interstate commerce.' Chicago, etc., R. Co. v. Wright, 239 U. S. 548, 550, 36 SCt 185, 186, 60 L. ed. 431. (3) The acts of a fireman in inspecting, oiling, firing, and otherwise preparing his engine for an interstate trip are acts performed as a part of interstate commerce. North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 SCt 305, 58 L. ed. 591, AnnCas1914C 159 [rev 156 N. C. 496, 72 SE 858]. (4) Likewise, a person firing an engine preparatory to attaching it to a train for another state, is engaged in interstate Tonsellito New York Cent., etc., R. Co., 87 N. J. L. 651, 94 A 804. (5) Moving an engine used in interstate commerce, preparatory to attaching it to cars is an act of interstate commerce. Byram v. Illinois Cent. R. Co., 172 Iowa 631, 154 NW 1006. (6) "One employed in removing freight from a train engaged in interstate commerce is, of necessity, in such act, engaged in interstate commerce.' Western R. Co. v. Mays, (Ala.) 72 S 641, 643. (7) A railroad employee injured while switching was employed in interstate commerce within the Employers' Liability Act, where he was distributing cars from an interstate train and clearing the track for another interstate train. Seaboard Air Line R. Co. v. Koennecke, 239 U. S. 352, 36 SCt 126, 60 L. ed. 324 [aff 101 S. C. 86, 85 SE 374]. (8) A switchman cutting out a "bad order" car of an interstate train is engaged in interstate commerce within the Federal Employers' Liability Act, the train, although stationary, being commerce. V. injured.23 The fact that an employee is handling an intra-state shipment which at a later date may become an instrumentality in interstate transportation does not make him an employee engaged in interstate commerce.24 [56] (ee) Services in Connection with Movement and Operation of Trains. Work which is of en It used in interstate commerce. Sears v. Atlantic Coast Line R. Co., 169 N. C. 446, 86 SE 176. (9) Plaintiff was a member of a crew engaged in switching and spotting cars to be londed with interstate commodities, and in hauling cars to a point where they could be taken by an interstate train, and, at the time of his injury, he was engaged in moving oil from an oil car to the engine for use as fuel, In holding that he was gaged in interstate commerce, the court said: "Was not the act which plaintiff was performing at the time of the accident just as essential to interstate commerce, as the repairing or the pulling of the throttle of an engine used in such traffic? It was a necessary act in the transmission of interstate freight, and all who cooperated in the work were engaged in interstate commerce within the meaning of the act of Congress. was closely connected with his general duties, Oil is the food that gives life and strength to the engine, furnishing the motive power for the transportation of interstate freight, and by the aid of which a stream of commerce flows from State to State and from State to foreign nations,' Montgomery v. Southern Pac, R. Co., 64 Or. 597, 608, 131 P 507, 47 LRANS 13. (10) A switchman is employed in interstate commerce, although at the time he is making up an interstate train belonging to another company using defendant's yards. Ruppell v. New York Cent. R. Co., 171 App. Div. 832, 157 NYS 1095. (11) "The business upon which the deceased was engaged at the moment was transferring an empty car from one switch track to another. This car was not moving in interstate If, as there was strong evidence to show, and as the court seemed to assume, this movement was simply for the purpose of reaching and moving an interstate car, the purpose would control and the business would be interstate. The difference is marked between a mere expectation that the act done would be followed by other work of a different character, as in Illinois Cent. R. Co. v. Behrens, 233 V. S. 473, 34 SCt 646, 58 L. ed. 1051. AnnCas1914C 163, and doing the act for the purpose of furthering the later work." Louisville, etc.. R. Co. v. Parker, $7 Set 4 [aff 165 Kỵ. 658, 177 SW 465]. (12) A railroad baggage-master whose run was from Cincinnati, Ohio, to Maysville, Ky., and back, and who was injured at Maysville while assisting in sidetracking the train to permit the passage of another, pursuant to the usual custom regarding his train. was injured in interstate commerce. Chesapeake, etc, R. Co. v. Shaw, 168 Ky 387, 182 SW 633, (13) The act of a brakeman in looking about the railroad yards for a tin cup for his train crew, the train being about to start in interstate commerce, is such a partic pation therein as to bring him within the Federal Employers Liab ty Act. Baltimore, etc. R. Co 1 Whitacre, 124 Md 411, 92 A 1060 | (14) Where a ra road watchman drives intruders from an interstate train, his acts do not change from bength aid of interstate commerc to a merely local pinkyment when he alights on the ground and starts to drive the intruders from the road company's property commerce. an interstate character so as to make a person engaging in it at the time of his injury an employee employed by the carrier in interstate commerce includes the services of engineers,25 firemen,26 conductors,27 brakemen,28 and other train operatives and persons engaging more or less directly in the actual movement and operation of interstate trains.29 in a state to another point in the same state, where at a later date it might be put in the tenders of engines running into other states). usual and ordinary duties pertain to interstate commerce, is engaged in such commerce at the time of his injury, where, although his work at that time does not consist of the actual movement of interstate traffic, it is so closely connected therewith that it cannot be disassociated therefrom, as where he is getting a train ready to leave a town (Neil v. Idaho, etc., R. Co., 22 Ida. 74, 125 P 331), (16) or where his train is on a return trip and is composed of flat cars on which is a pile driver owned by the railroad company (Peery v. Illinois Cent. R. Co., 123 Minn. 264, 143 NW 724). (17) Where an engine which had been exclusively used in interstate commerce was repaired and run out on a track preparatory to its next interstate journey, the work of an engineer in making a trial run of it within the state for the purpose of ascertaining whether it was in proper condition for its run from Spencer, N. C., to Monroe, Va., was of such a nature that the engineer was employed in interstate commerce; the work was done only in a preparatory stage of interstate commerce, but was none the less a part of it. Lloyd v. Southern R. Co., 166 N. C. 24, 81 SE 1003. [b] Taking intra-state car from interstate train.-A brakeman on an interstate train who is engaged at the time of his injury in setting or cutting out an intra-state freight car, in order that the interstate train may proceed on its journey, is engaged in interstate commerce at that time. New York Cent., etc., R. Co. v. Carr, 238 U. S. 260, 35 SCt 780, 59 L. ed. 1298 [aff 157 App. Div. 941, 142 NYS 1111]. Contra Van Brimmer v. Texas, etc., R. Co., 190 Fed. 394. 23. See cases infra this note. [a] Thus (1) a railroad yard clerk checking cars in trains is not, while walking through the yard, engaged in interstate commerce within the Federal Employers' Liability Act, in the absence of any evidence showing that he had been engaged in any service in connection with an interstate | train or showing for what purpose he was walking through the yard. Pecos, etc., R. Co. v. Rosenbloom. (Tex.) 177 SW 952 [den reh 173 SW 215]. (2) A yard switchman injured while assisting in moving freight cars left in the yard by a fast freight was not within the Federal Employers' Liability Act, where the cars during the trip did not pass out of the state and contained no freight for interstate commerce, although his general employment related to both | interstate and intra-state commerce. Norton v. Erie R. Co., 163 App. Div. 466, 148 NYS 769. (3) An employee injured by a car while it was empty and awaiting orders cannot recover under the Federal Employers' Liability Act. Moran V. New Jersey Cent. R. Co. 88 N. J. L. 730, 96 À 1023. (4) Where a brakeman who was a member of a train crew engaged indiscriminately in handling interstate and intra-state freight was; injured while going from his caboose to the yard office for supplies for the caboose, he was not then em-1 ployed in interstate commerce. MeBa T Northern Pac. R. Co. 32 Mont. 578 153 P 634 Cutting out intra-state car from interstate train see supra note 22 (5) 24. Baker 1 Kansas City RCS Se Kan. 175, 146 P 338 (where the em ice was ass sting in hardting & sh nment of coal from a point 25. Barlow v. Lehigh Valley R. Co., 214 N. Y. 116, 107 NE 814 [aff 158 App. Div. 768, 143 NYS 1053]: Lloyd v. Southern R. Co., 166 N. Č. 24, 81 SE 1003; Horton v. Seaboard Air Line R. Co., 157 N. C. 146, 72 SE 958; Missouri, etc., R. Co. v. Rentz, (Tex. Civ. A.) 162 SW 959; Snyder v. Great Northern R. Co., 88 Wash. 49, 152 P 703. 26. North Carolina R. Co. V. Zachary, 232 U. S. 248, 34 SCt 305, 58 L. ed. 591, AnnCas1914C 159 [rev 156 N. C, 496, 72 SE 858]; Lamphere v. Oregon R., etc., Co., 196 Fed. 336, 116 CCA 156, 47 LRANS 1; Thompson v. Wabash R. Co., 262 Mo. 468. 171 SW 364; Southern R. Co. V. Jacobs, 116 Va. 189, 81 SE 99; Findley v. Coal, etc., R. Co., (W. Va.) 87 SE 198 (student fireman). 27. Neil v. Idaho, etc., R. Co., 22 Ida. 74, 125 P 331; Wagner v. Chicago, etc., R. Co., 180 Ill. A. 196; Peery v. Illinois Cent. R. Co., 123 Minn. 264, 143 NW 724; McAuliffe v. New York Cent., etc., R. Co., 158 NYS 922. 28. U. S.-Waters v. Guile, 234 Fed. 532 (holding that a brakeman on a train containing cars loaded with interstate freight is engaged in interstate commerce, within the Federal Employers' Liability Act, although the train runs only between intra-state points); Canadian Pac. R. Co. v. Thompson, 232 Fed. 353, 146 CCA 401. Kan.-Thornbro v. Kansas City, etc., R. Co., 91 Kan. 684, 139 P 410, AnnCas1915D 314, 92 Kan. 681, 142 P 250. Ky.-Nashville, etc.. R. Co. V. Banks, 156 Ky. 609, 161 SW 554; Cincinnati, etc., R. Co. v. Goode, 155 Ky, 153, 159 SW 695; Cincinnati, etc., R. Co. v. Goode, 153 Ky. 247, 154 SW 941. Mo.-Vaughan v. St. Louis, etc., R. Co., 177 Mo. A. 155, 164 SW 144. Or.-Oberlin v. Oregon-Washington R., etc., Co., 71 Or. 177, 142 P 554. Tex.-St. Louis Southwestern Co. v. Brothers, (Civ. A.) 165 SW 488 ("extra" brakeman). R. 29. U. S.-St. Louis, etc., R. Co. V. Seale, 229 U. S. 156, 33 SCt 651, 57 L. ed. 1129, AnnCas1914C 156 [rev (Tex. Civ. A.) 148 SW 1099] (yard clerk who checks and records car numbers, labels cars for the guidance of switching crews, and performs other duties directly connected with the movement of interstate freight trains); Illinois Cent. R. Co. v. Nelson, 203 Fed. 956, 122 CCA 259; Johnson v. Great Northern R. Co.. 178 Fed. 643, 102 CCA 89 (employee charged with duty of seeing to coupling of air brake pipes of cars being used in interstate commerce). And see Illinois Cent. R. Co. v. Porter, 207 Fed. 311, 125 CCA 55 (holding that a truckman employed by a railroad company to wheel interstate freight from a warehouse into a car to be transported in interstate commerce in engaged in interstate commerce). Ala-Southern R. Co. v Peters, 69 S 611 employee working at a cal chute, eraling engines ca an interI state railroad and serving interstate and intra-state trains); Atlantic Coast Line R. Co. v. Jones, 9 Ala. A. 499. 63 S 693. Ark-Kansas City Southern R. Co. v. Miller. 117 Ark. 396. 175 SW 1164 Ird-Vandala R Co r Holland, One employed in cleaning out ash pits into which ashes from both interstate and intra-state locomotives are dumped is engaged in interstate commerce.30 [57] (f) Construction and Repair Work. For a railroad employee to be engaged in interstate commerce it is not necessary that he be engaged direetly in the work of moving trains;31 he is employed in interstate commerce when he is engaged in repairing, altering, or reconstructing tracks and bridges over which interstate trains pass, or a pumping house and pumping station already devoted to and used in interstate commerce, or a telegraph or telephone line by which the operation of inter 183 Ind. 438, 108 NE 580 (member of switching crew handling cars destined for point in another state); Pittsburgh, etc., R. Co. v. Farmers' Trust, etc., Co., 183 Ind. 287, 108 NE 108 (yard clerk charged with duty of making record of every car that came to or departed from a certain city). lowa-Narey v. Minneapolis, etc., R. Co., 159 NW 230; Armbruster v. Chicago, etc., R. Co., 166 Iowa 155, 147 NW 337 (employee engaged in coaling an engine then being prepared for interstate service). Minn.-Crandall v. Chicago Great Western R. Co., 127 Minn. 498, 150 NW 165 Mo.-Moliter v. Wabash R. Co., 180 Mo. A. 84, 168 SW 250; Rich v. St. Louis, etc., R. Co., 166 Mo. A. 379, 148 SW 1011 (switchman engaged in switching car in transit from one state to another). N. C.-Hinson v. Atlanta, etc., R. Co., 90 SE 772. Or.-Kambrois v. Oregon-Washington R., etc., Co., 75 Or. 358, 146 P 1097; Montgomery v. Southern Pac. Co., 64 Or. 597, 131 P 507, 47 LRANS 13 (member of switching crew). Tenn. Cincinnati, etc., R. Co. v. Bonham, 130 Tenn. 435, 171 SW 79 (signalman operating electric signals which control the operations of interstate trains). Tex-Freeman v. Powell, (Civ. A.) 133 SW 1033 [rev on other grounds 105 Tex. 317, 148 SW 290]. Wash.-Wessler v. Great Northern R. Co., 90 Wash. 234, 155 P 1063, 157 P 461 (express messenger on interstate train in charge of electric plant in express car); Bolch, v. Chicago, etc., R. Co., 90 Wash. 47, 155 P 422; Horton v. Oregon-Washington R., etc., Co., 72 Wash. 503, 130 P 897, 47 LRANS 8. [a] Employee on tugboat or ferryboat operated by railroad.—(1) Employers' Liability Act, as amended by the act of April 5, 1910, applies to employees of a railroad company employed on a ferryboat owned and operated by the company in interstate commerce in connection with its railroad. The Passaic, 190 Fed. 644 [aff 204 Fed. 266, 122 CCA 466]. (2) Likewise the statute applies to injuries received by employees on a tugboat operated by a railroad company and engaged in the business of continuing or completing interstate traffic by railroad. Erie R. Co. v. Jacobus, 221 Fed. 335, 137 CCA 151. 30. Cincinnati, etc., R. Co. V. Clarke, 169 Ky. 662, 185 SW 94; Grybowski v. Erie R. Co., 88 N. J. L. 1, 95 A 764. 31. Law v. Illinois Cent. R. Co., 208 Fed. 869, 126 CCA 27, LRA1915C 17. 33 32 35 state trains is controlled and directed.34 Also, a person is employed in interstate commerce when he is engaged in the repair or reconstruction of station buildings used for the accommodation of interstate passengers, or freight sheds, depots, warehouses, and other facilities used by a carrier for receiving, handling, and discharging interstate freight.36 An employee performing repair work or other work. in connection with an engine, car, or other similar instrumentality habitually used in interstate commerce is entitled to the benefit of the provisions of the act, although at the time the instrumentality is temporarily at rest or out of service,37 or is not being put to the particular use for which it was under the rails of the tracks used Ark.-Long v. Lusk, 186 SW 601. V. 34. Coal, etc., R. Co. v. Deal, 231 Fed. 604, 145 CCA 490, 146 CCA 665 [aff 215 Fed. 285]; Collins v. Michigan Cent. R. Co., (Mich.) 159 NW 535. was 35. Nash v. Minneapolis, etc., R. Co., 131 Minn. 166, 171, 154 NW 957 (where in holding that an employee who with others engaged in transporting a new outhouse to a depot used for interstate traffic, to install the same in place of an old one previously erected, was within Iowa. Narey v. Minneapolis, etc., the protection of the Federal EmR. Co., 159 NW 230; Clark v. Chi-ployers' Liability Act, the court said: cago Great Western R. Co., 170 Iowa "The old outhouse, for which the one to be substituted, 452, 152 NW 635 (servant repairing in question was tracks which had been so far comwas a mere appendage to defendant's pleted that they were used for in- station building or depot. This depot terstate trains). was used in interstate commerce; and replacing the old closet by a new one was rather in the nature of repairs to the station accommodations provided for the use of the traveling public, than the installation and erection of a new and independent structure. The crew had placed it upon a train, for the purpose of having it conveyed to St. Anthony, where they were to install it. It had fallen from the train, and, at the time of the accident, they were engaged in conveying it from the place where it fell to St. Anthony. The outhouse was being conveyed to a depot already in use, for use in connection therewith. Under the doctrine of the cases, we think the facts and circumstances brought Nash within the protection of the act"); Chrosciel v. New York Cent., etc., R. Co., 159 NYS 924. Ky.-Cincinnati, etc., R. Co. Tucker, 168 Ky. 144, 181 SW 940; Louisville, etc., R. Co. V. Walker, 162 Ky. 209, 172 SW 517; Truesdeli v. Chesapeake, etc., R. Co., 159 Ky. 718, 169 SW 471 (substituting new rails for old ones). Mich.-Holmberg v. Lake Shore, etc., R. Co., 188 Mich. 605, 155 NW 504. N. J.-Willever v. Delaware, etc., NYS 83. Pa.-Glunt v. Pennsylvania R. Co., Tex.-Missouri, etc., R. Co. V. To same effect Louisville, etc., R. πο And see Lynch v. Central Ver- 32. U. S.-Pedersen v. Delaware, etc., R. Co., 229 U. S, 146, 33 SCt 648, 57 L. ed. 1125, AnnCas1914C 153; Grand Trunk R. Co. v. Knapp, 233 Fed. 950, 147 CCA 624; Lombardo v. Boston, etc., R. Co., 223 Fed. 427, 482 (where the court said: "A person engaged in repairing the tracks of a railroad company is engaged in interstate commerce, even though the repairs consist in shoveling the dirt from between the ties 183 SW 682. 36. Eng. v. Southern Pac. Co., 210 Fed. 92 (repair of freight shed). 37. U. S.-Chicago, etc., R. Co. v. Kindlesparker, 234 Fed. 1, 148 CCA 17; Grand Trunk R. Co. v. Knapp, 233 Fed. 950, 147 CCA 624; Law v. Illinois Cent. R. Co., 208 Fed. 869, 126 CCA 27, LRA1915C 17 (holding that an employee engaged in making repairs on an engine which had been dismantled twenty-one days before the accident and was undergoing what is called a "roundhouse overhauling," but which had actually been in use in interstate commerce and was destined for return thereto on completion of repairs, is engaged in interstate commerce, the withdrawal of the engine from actual use in interstate commerce, although long in time, being deemed to be a mere temporary withdrawal); Baltimore, etc.,. R. Co. v. Darr, 204 Fed. 751, 124 CCA 565. Compare Heimbach v. Lehigh Valley R. Co., 197 Fed. 579 (holding that an employee engaged in repairing a car which had been used in interstate commerce, but at the time was in Pennsylvania awaiting orders, is not engaged in interstate commerce). Cal. Southern Pac. Co. v. Pillsbury, 170 Cal. 782, 151 P 277, LRA 1916D 916. Ill.-Staley v. Illinois Cent. R. Co., 268 Ill. 356, 109 NE 342, LRA1916A 450 [rev 186 Ill. A. 593]. Ky.-Illinois Cent. R. Co. v. Doherty, 153 Ky. 363, 155 SW 1119, 47 LRANS 31 and note. Md. Baltimore, etc., R. Co. v. Branson, 128 Md. 678, 98 A 225 (painting engines and cars used in interstate transportation). |