CHRISTOPHER L. WILLIAMS, as Receiver | Mineral Point, Wisconsin, and by her will of First National Bank of Mineral Point, Wisconsin,

Mr. Justice Clarke delivered the opinion assets of the estate, and thereby to pass of the court:

good title to them. Munteith v. Rahn, 14

In 1904 Laura A. Cobb died testate at Wis. 210; Ex parte Gay, 5 Mass. 419;

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(242 U. S. 303)

Leitch v. Wells, 48 N. Y. 585. Perry, Tr., the decree of the Circuit Court of Appeals §§ 225, 809. A sale by an executor, even must be affirmed. to himself, is not void, but only voidable, at the option of interested persons. Grim's Appeal, 105 Pa. 375; Tate v. Dalton, 41 ERIE RAILROAD COMPANY, Plff. in Err., N. C. (6 Ired. L.) 562. And if, after such purchase from himself, an executor sells to another, the purchaser from him acquires a

V.

JAMES T. WELSH.

good title. Cannon v. Jenkins, 16 N. C. (1 COMMERCE 27(5)-EMPLOYERS' LIABILDev. Eq.) 426.

No suggestion is made that the transfer of the stock by the executors to themselves as trustees was not made in good faith, and it was obviously made under the conviction that it was, if not "an interest-bearing security," at least the equivalent of such a security. Very certainly this was the basis for the approval of the transaction by the appropriate Wisconsin court more than a year before the bank failed, and, for any thing that appears in the record, prior to the time when the bank became insolvent.

The claim that the lower court failed to give proper effect to § 2091 of the Wisconsin statute cannot be allowed. The part of this section which is claimed to be applicable reads:

ITY-WHEN SERVANT IS ENGAGED IN IN-
TERSTATE COMMERCE.

1. The true test as to whether an injured railway employee was engaged in interstate commerce at the time he received his injuries, so as to make applicable the Employers' Liability Act of April 22, 1908 (35 Stat. at L. 65, chap. 149, Comp. Stat. he was doing at the time of the injury, and 1913, § 8657), is the nature of the work the mere expectation that he would presently be called upon to perform a task in interstate commerce is not sufficient to bring the case within the act.

[Ed. Note.-For other cases, see Commerce,
Dec. Dig. 27(5).]
COMMERCE 27(6)-EMPLOYERS' LIABIL-
ITY-WHEN SERVANT IS ENGAGED IN "IN-
TERSTATE COMMERCE.

2. A yard conductor on an interstate railway, injured while alighting from a "When a trust shall be expressed in the slowly moving freight engine for the purinstrument creating the estate, every sale, pose of reporting to the yardmaster's ofconveyance or other act of the trustee in fice for further orders, having executed all contravention of the trust shall be absolute-terstate commerce so as to render applicaprevious orders, was not employed in inly void."

ble the Employers' Liability Act of April 22, 1908 (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657), although the orders which he would have received had he not been injured would have required him immediately to make up an interstate train. Dec. Dig. 27 (6).

[Ed. Note.-For other cases, see Commerce,

This section is found in a chapter devoted to "Uses and Trusts," of the title, "Real Property and the Nature and Quality of Estates Therein," and the claim is made that its drastic provision should be extended to trusts in personal property. No Wisconsin court has so applied it, but, on the contrary, the supreme court of the state, COURTS 399(2)—ERROR TO STATE COURT in Lamberton v. Pereles, 87 Wis. 449, 23 L.R.A. 824, 58 N. W. 776, refused to make other sections of this same chapter respect

For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]

-FOLLOWING DECISION BELOW
TION FOR JURY.

QUES

3. A decision of a state court that the the jury of the question whether a yard evidence did not require the submission to

ing real estate applicable to personal prop erty, saying: "In this state we have no statute making the statute of uses and the time of his injury, employed in interconductor on an interstate railway was, at trusts, or any part of it, applicable to per-state commerce, should not be disturbed by sonal property." It is significant also that, the Federal Supreme Court, where the testiin the statute dealing with "Trust Invest-mony shows that such employee having, ments," no such provision is found. Wis. under orders, taken from one yard to anStat. Supp. § 2100b.

other an interstate freight car and a caIt results that, since the executors had boose which, so far as appears, was not to lawful authority to dispose of the bank go outside the state, and having placed the shares, assets as they were of the estate, freight car on a siding, to be made up into so long as the transfer is permitted to the caboose a short distance further and a train by another crew, and having taken stand unassailed directly the title to them placed it on another siding, next took the is in the defendant and Spensley, as trus- engine to a water plug and took on water, tees for Catherine Monohan, and that the and then returned to the first yard, and was estate of Mrs. Cobb is not liable to the re-injured while attempting to alight from the ceiver for the assessment claimed. If the estate is not liable, the defendant, as legatee and distributee, is not liable, and the claim in suit, obviously without natural equity, is therefore without technical merit, and

locomotive for the purpose of reporting to
the yardmaster's office for further orders.
[Ed. Note.-For other cases, see Courts, Cent.
Dig. § 1090; Dec. Dig. 399 (2); Appeal and
Error, Cent. Dig. $$ 3331, 3585, 3396.]
[No. 29.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Argued October 25, 1916. Decided December | 976, 36 Sup. Ct. Rep. 588), if the case came

within the Federal act; and this depended upon whether plaintiff was employed by defendant in interstate commerce at the time he received his injuries. Defendant's fourth request was for the submission to the jury of the question whether plaintiff was employed in such commerce, with an appropriate instruction embodying the rule as to assumption of risk in case they should

See same case below, 89 Ohio St. 81, 105 find him to have been so employed. This N. E. 189.

request, which in terms invoked the protection of the act of Congress, was refused, and the trial court, in the instructions given, declined to follow that act or the common law, and, on the contrary, in

The facts are stated in the opinion. Messrs. Leroy A. Manchester, C. D. Hine, James B. Kennedy, and John W. Ford for plaintiff in error. Mr. William R. Stewart for defendant structed the jury that, under a state statin error.

Mr. Justice Pitney delivered the opinion of the court:

The supreme court of Ohio (89 Ohio St. 81, 105 N. E. 189) affirmed a circuit court judgment which sustained a judgment recovered in a court of common pleas by Welsh against the Erie Railroad Company for damages on account of personal injuries suffered by him while in its employ as a yard conductor in the Brier Hill yard, near Youngstown, Ohio; overruling the contention of the defendant (now plaintiff in error) that by certain rulings of the trial court defendant had been deprived of rights secured to it by the Federal Employers' Liability Act of April 22, 1908 (chap. 149, 35 Stat. at L. 65, Comp. Stat. 1913, § 8657).

Plaintiff's case was that, on March 7, 1911, about 11 o'clock P. M., while in the performance of his duties, he attempted to alight from the footboard of a slowly moving locomotive; that in so doing he stepped upon a pulley wheel of an interlocking mechanism situate between the tracks, and then covered with snow, and the turning of the wheel under his weight caused his foot to become entangled in the interlocking wires, as a result of which he fell partly under the locomotive and sustained serious injuries. The negligence attributed to defendant was the failure properly to guard or cover the wires and the pulley wheel. There was evidence tending to show such a knowledge on plaintiff's part of the nature and character of the interlocking apparatus and its location between the tracks, and such a knowledge and appreciation of the dangers incident thereto, as to bring into play the defense of assumption of risk (Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 503, 58 L. ed. 1062, 1069, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834; Jacobs v. Southern R. Co. 241 U. S. 229, 234, 30 L. ed. 970,'

ute held to be applicable, the assumption of risk was not a defense.

The rulings of the trial court were sustained by the supreme court (and presumably by the circuit court) upon the ground that, upon the undisputed evidence, plaintiff was not at the time employed in interstate commerce. As to this question, there was testimony tending to show that defendant was a common carrier by rail engaged in commerce between the states, and that plaintiff was and for some time had been a yard conductor engaged in night duty at its Brier Hill yard, a mile or more west of Youngstown; that he performed miscellaneous services in the way of shifting cars and breaking up and making up trains, under orders of the yardmaster, and had to apply frequently to the latter for such orders; that when any orders thus given had been performed, or had "run out," he usually reported at the yardmaster's office for further orders; that on the night in question plaintiff, with a yard crew, took a freight car loaded with merchandise destined to a point without the state, and a caboose which, so far as appears, was not to go beyond the limits of the state, from the Brier Hill yard eastwardly to the "F. D. yard” in Youngstown, where the freight car was placed upon a siding, so that it might be made up into a train by another crew; that they then took the caboose a short distance farther and placed it upon another siding; that they next took the engine to a water plug and took on water, and then returned with it to the Brier Hill yard; that on this return journey the engine was slowed down near the yardmaster's office, which is at the easterly end of that yard, so as to enable Welsh to report for further orders, all previous orders having been executed; and that the injury was received while he was attempting to alight for that purpose. It was in evidence, also, that the orders plaintiff would have received had he not

been injured on his way to the yardmaster's

(242 U. S. 298)

Plff. in Err..

V.

office would have required him immediately PENNSYLVANIA RAILROAD COMPANY, to make up an interstate train. Upon the strength of this it is argued that his act

COURTS 489(9) JURISDICTION SUIT
AGAINST INTERSTATE CARRIERS-CAR DIS-
TRIBUTION - ADMINISTRATIVE QUESTION.

at the moment of his injury partook of the STINEMAN COAL MINING COMPANY. nature of the work that, but for the accidental interruption, he would have been called upon to perform. In our opinion, this view is untenable. By the terms of the Employers' Liability Act the true test is the nature of the work being done at the time of the injury, and the mere expectation that plaintiff would presently be called upon to perform a task in interstate commerce is not sufficient to bring the case within the act. Illinois C. R. Co. v. Behrens, 233 U. S. 473, 478, 58 L. ed. 1051, 1055, 34 Sup. Ct. Rep. 646, Ann. Cas. 1914C, 163, 10

N. C. C. A. 153.

commerce.

There remains the contention that plaintiff's act in stepping from the yard engine was in completion of his trip to the "F. D. yard" with the interstate car, and hence was itself an act in furtherance of interstate This cannot be answered by saying, in the words used arguendo by the state supreme court (89 Ohio St. 88), that "he was not then and there employed in moving or handling cars engaged in interstate commerce." The question remains whether he was performing an act so directly and immediately connected with his previous act of placing the interstate car in the "F. D. yard" as to be a part of it or a necessary incident thereto. New York C. & H. R. R. Co. v. Carr, 238 U. S. 260, 264, 59 L. ed. 1298, 1300, 35 Sup. Ct. Rep. 780, 9 N. C. C. A. 1; Shanks v. Delaware, L. & W. R. Co. 239 U. S. 556, 559, 60 L. ed. 436, 438, L.R.A.1916C, 797, 36 Sup. Ct.

Rep. 188. And this depends upon whether
the series of acts that he had last performed
was properly to be regarded as a succession
of separate tasks or as a single and indivisi-
ble task. It turns upon no interpretation
of the act of Congress, but involves simply
an appreciation of the testimony and ad-
missible inferences therefrom in order to
determine whether there was a question to
be submitted to the jury as to the fact of
employment in interstate commerce. The
state courts held there was no such ques-
tion, and we cannot say that in so conclud-
ing they committed manifest error.
sults that, in the proper exercise of the
jurisdiction of this court in cases of this
character, the decision ought not to be dis-
turbed. Great Northern R. Co. v. Knapp,
240 U. S. 464, 466, 60 L. ed. 745, 751, 36
Sup. Ct. Rep. 399.
Judgment affirmed.

1. A state court has jurisdiction without previous action by the Interstate Coming company against an interstate carrier merce Commission of a suit by a coal minto recover the damages arising in interstate commerce out of the latter's failure to furnish such company with the number of coal cars to which it claims to be entitled under the carrier's own rule for car distribution, since, the rule itself not being attacked, there was no administrative question in

volved.

Dig. 1326; Dec. Dig. 489 (9).]
[Ed. Note.-For other cases, see Courts, Cent.
COURTS 489(9)

JURISDICTION-SUIT AGAINST INTERSTATE CARRIERS-CAR DISTRIBUTION-ADMINISTRATIVE QUESTIONS. 2. The carrier's defense at the trial of a suit brought by a shipper to recover the damages arising in interstate commerce out of the carrier's failure to furnish such shipper with the cars to which it claimed to be entitled under the carrier's own rule for car distribution, that the rule invoked by the shipper was discriminatory, and shipper's right or the carrier's duty, did therefore not an appropriate test of the not oust the state court of jurisdiction, where the administrative question thus presented was not then an open one, such rule having theretofore been found by the Interstate Commerce Commission, upon complaint of other shippers, to be unjustly discriminatory.

[Ed. Note. For other cases, see Courts, Cent.
Dig. § 1326; Dec. Dig. 489 (9).]
COMMERCE 88 INTERSTATE COMMERCE
COMMISSION JUDICIAL RESPECT FOR
FINDINGS-DISCRIMINATION - CARRIER'S
RULE FOR CAR DISTRIBUTION.

brought in a state court by a shipper to 3. No recovery may be had in a suit recover damages arising in interstate commerce out of the carrier's failure to furnish a shipper with the cars to which it claimed to be entitled under the carrier's own rule for car distribution, where, before the trial, though after the period covered by the suit, the Interstate Commerce Commission, upon complaint of other shippers and after a full hearing, had found that such rule was unjustly discriminatory, and had directed the carrier to give no further effect to it, and, recogIt renizing that shippers who had been injured through its operation in the past were entitled to reparation, had proceeded to award reparation to such shippers as appeared and adequately proved their injury and the sion's report making it plain that the findamount of damages sustained, the Commising was not based upon any temporary condition, but upon what inhered in the

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

rule, and therefore was true from the time against it to its damage by furnishing it a of its adoption.

Commerce,

[Ed. Note.-For other cases, see Cent. Dig. §§ 139, 141; Dec. Dig. 88.]

[No. 11.]

Argued May 14, 1915. Restored to docket for reargument June 14, 1915. Reargued October 25, 1915. Decided December 18, 1916.

I

N ERROR to the Supreme Court of the State of Pennsylvania to review a judg. ment which affirmed a judgment of the Court of Common Pleas of Clearfield County, in that state, in favor of a shipper in an action against an interstate carrier to recover damages arising in interstate commerce from the carrier's failure to furnish the shipper with the cars to which it claimed to be entitled under the carrier's own rule for car distribution. Reversed. See same case below, 241 Pa. 509, 88 Atl. 761.

The facts are stated in the opinion. Messrs. Francis I. Gowen, John G. Johnson, and F. D. McKenney for plaintiff in error.

smaller number of cars, and some of its competitors a greater number, than the rule contemplated or permitted. In other words, the claim was not that the rule was discriminatory, but that it was violated or unequally enforced by the carrier. Of such a suit we said in Pennsylvania R. Co. v. Puritan Coal Min. Co. 237 U. S. 121, 131, 132, 59 L. ed. 867, 873, 35 Sup. Ct. Rep. 484, where the provisions of the Interstate Commerce Act were extensively considered: "There is no administrative question involved, the courts being called on to decide a mere question of fact as to whether the carrier has violated the rule to plaintiff's damage. Such suits, though against an interstate carrier for damages arising in interstate commerce, may be prosecuted either in the state or Federal courts." Adhering to this view, we think the suit was properly brought in a state court. See Pennsylvania R. Co. v. Sonman Shaft Coal Co. 242 U. S. 120, 61 L. ed. 188. 37 Sup. Ct. Rep. 46.

But it is suggested that, in the course of the trial, an administrative question-one which the act intends the Interstate Commerce Commission shall solve-was brought Messrs. A. M. Liveright and A. L. Cole into the suit, and that this disabled the for defendant in error.

court from proceeding to a decision upon the merits. The suggestion is grounded upon

Mr. Justice Van Devanter delivered the the fact that one of the carrier's defenses opinion of the court:

In a state court in Pennsylvania the coal company recovered a judgment against the railroad company for damages resulting, as was claimed, from unjust discrimination practised in the distribution of coal cars in times of car shortage; and the supreme court of the state affirmed the judgment. 241 Pa. 509, 88 Atl. 761.

The suit related to both intrastate and interstate commerce, and whether, in respect of the latter, it could be brought in a state court consistently with the Interstate Commerce Act is the first question presented.

The coal company was engaged in coal mining on the carrier's line in Pennsylvania, and was shipping the coal to points in that and other states. Other coal companies were engaged in like operations in the same district. A rule of the carrier provided for a pro rata distribution of the available supply of coal cars in times of car shortage, but did not require or contemplate that individual cars, owned or controlled by the shipper, should be charged against his distributive share. Without questioning the reasonableness of this rule, but, on the contrary, assuming that it was unobjectionable and became the true measure of the shipper's right and the carrier's duty, the coal company claimed that the carrier had unjustly discriminated

at the trial was to the effect that the rule invoked by the coal company as fixing its quota of the cars was unjustly discriminatory, and therefore not an appropriate test of the shipper's right or the carrier's duty. We think the suggestion is not well taken. The administrative question, which was whether the rule was reasonable or otherwise, was not then an open one. It had been theretofore determined in the mode contemplated by the act. Upon the complaint of other shippers, and after a full hearing, the Commission had found that the rule was unjustly discriminatory, and had directed the carrier to give no further effect to it. See Hillsdale Coal & Coke Co. v. Pennsylvania R. Co. 19 Inters. Com. Rep. 356; Jacoby v. Pennsylvania R. Co. 19 Inters. Com. Rep. 392, 23 Inters. Com. Rep. 186. This was shown by the reports and orders of the Commission, which were produced in evidence. Thus there was no jurisdictional obstacle at this point.

The Commission deemed it essential to a fair distribution in times of car shortage that individual cars, owned or controlled by the shipper, should be charged against his distributive share, and because the rule here took no account of such cars the Commission found that it was unjustly discriminatory. This occurred two years before the trial, but after the period covered by the suit. As

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes