were entitled to such compensation, and it may be that under the rule that, as against a general demurrer, every reasonable intendment should be indulged in favor of the sufficiency of the petition, that this allegation considered by itself should be construed as including the allegation that Jannsen was a subscriber, but this intendment cannot be indulged in the face of the direct and positive allegation that the policy was issued to Garbade-Eiband & Co., and that they became the subscribers.

[3, 4] It is further to be observed that the only statute which we have quoted above only gives the right of subrogation when a cause of action for an injury to an employee caused by a third person has vested in the injured employee. This is not giving the right of subrogation to a cause of action accruing under the compensation statute to the beneficiaries of an employee who has been killed by the negligence of a third person. We can see no reason why the statute should not have conferred the right as well in the one case as in the other, but the fact remains that it has not done so, and the courts are not authorized to extend the scope and application of the statute merely because there is apparently no reason why the right given in the case named therein should not have been given in other cases. Turner v. Eddy & Cross, Receivers, 83 Tex. 218, 18 S. W. 578, 15 L. R. A. 262.

[5] Under the workmen's compensation statute the amount which the relatives of an employee who loses his life in the course of his employment are entitled to receive does not come to them by inheritance from the deceased, nor does it become a part of the deceased's estate, and the only cause of action which the relatives have is given by the statute, and vests originally in the beneficiaries named in the statute.

[6] The appellee not having become liable to Gillette for any sum, no right of subrogation is given by this statute, and appellant cannot enforce against appellee in "Gillette's name" or "in its own name" a liability which never existed in favor of Gillette.

[7] By its second assignment of error appellant contends that, independent of the statute, it had the right of subrogation in equity. It is settled by decisions that the right of equitable subrogation exists in favor of a fire insurance company who has paid for loss occasioned by the negligence of third persons, and that no such right exists in favor of a life or accident insurance company. Insurance Co. v. Easton, 73 Tex. 167, 11 S. W. 180, 3 L. R. A. 424; Wood v. Railway, 15 Tex. Civ. App. 322, 40 S. W. 24; Railway Co. v. Insurance Co., 84 Tex. 152, 19 S. W. 459; Ætna Life Ins. Co. v. Parker, 96 Tex. 287, 72 S. W. 168, 580, 621.

It seems to us that the insurance provided under the workmen's compensation statute is purely accident insurance, and the mere fact that premiums for such insurance are not paid directly by the employees should not have the effect of giving an equitable

right of subrogation to the insurance company when no such right exists in other species of accident insurance.

For the reasons indicated, we think the trial court did not err in sustaining the general demurrer, and the judgment must be affirmed.

Affirmed.

UNITED STATES CIRCUIT COURT OF APPEALS.

SECOND CIRCUIT.

ERIE R. CO.

V.

DOWNS. (No. 207.)*

1. COMMERCE--EMPLOYERS' LIABILITY ACT-EMPLOYMENT IN "INTERSTATE COMMERCE."

A switchyard brakeman was a member of a crew attached to a switch engine, and his day's work was in switching cars in interstate and intrastate commerce. He had just assisted in switching a string of 50 or 60 cars, some of which were loaded with interstate shipments, and was returning to his engine when he was struck and injured. Held, that his return was so immediately connected with his previous act as to be a necessary incident thereto, and that he was at the time of his injury employed in interstate commerce, within the meaning of Employers' Liability Act April 22, 1908, c. 149, § 1, 35 Stat. (Comp. St. 1916, § 8657). (For other cases, see Commerce, Dec. Dig. § 27[7].)

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

Before Rogers and Hough, Circuit Judges, and Learned Hand, District Judge.

In Error to the District Court of the United States for the Southern District of New York.

Action at law by John Downs against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed. Certiorari denied 38 Sup. Ct. 583, "U. S.

62 L. Ed.

The plaintiff in error will be hereinafter referred to as defendant, and the defendant in error as plaintiff. The plaintiff is a citizen of New Jersey. The defendant is a corporation organized and existing under the laws of the state of New York. The plaintiff brought an action under the federal Employers' Liablity Act to recover damages for personal injuries sustained by him in the employ of defendant. He obtained a verdict from a jury for $22,500, which the trial court reduced to $20,000.

The plaintiff was a yard brakeman, and was struck down and run over by a cat in the defendant's yard at Jersey City, as a result of which he lost his right arm. It is claimed the accident occurred by reason of the defendant permitting cars to move about its yard while it was dark, without providing lights on the cars or brakemen to control the movement of the cars or to warn of their approach. The plaintiff had been employed in the yards for 19 years. The yard was divided into various subyards, and the accident occurred in what is known as "Yard A,” and the cars in that yard are sent over what is called the North Hump." This hump is 10 feet high, and it descends sharply for a distance of 300 feet at a grade of 3.8, and then tapers gradually for about 500 feet to a level grade. The cars come from a receiving yard (yard D) into yard A, which is a slassification yard, and as they reach the top of the hump * Decision rendered, April 10, 1918. 250 Fed. Rep. 415.

Vol. II-Comp. 40.

they are cut off in "cuts" of from 1 to 20 cars, and are permitted to roll down the hump by gravity into some one of the 21 tracks which that yard contains, where they are made up into trains for different points.

A

The plaintiff had served as brakeman, conductor, and yardmaster. On the day in question he was serving as a freight brakeman in a crew engaged in switching cars. He testified that just previous to the injury he had been engaged with his engine in an operation consisting of moving about 50 or 60 cars from yard E, and was protecting the rear end of the string of cars so moved. That operation being concluded, he left that string of cars to return and pick up his engine in yard A; the engine being about 50 cars away from him. To regain his engine he had to cross a number of tracks, and as he approached the track on which he was injured he looked, he said, to the east and to the west. He saw a car standing to the east and some to the west, with an open space of 15 or 18 feet between. He could see nothing coming on the track from either direction and started to cross. As he took one step beyond the first rail he heard a crash, and was knocked down and run over. car had come down the hump1 and crashed into the stationary car, which knocked him down and ran over him. The force of the impact was such as to drive the car collided with over 90 feet, even against the resistance afforded by the weight of the cars standing 9 or 10 feet to the west of the plaintiff. There was no one on the colliding car at the time to control its speed or give warning. The practice was for the conductor in charge of a switching crew to have brakemen varying in number mount the cars as they were cut off at the top of the hump and ride them down the hump into the classification tracks, so as to control their speed and that no damage would be done. It sometimes happened, even at night, that a conductor would drop 2 or 3 empty cars down the hump, without a brakeman in charge and without lights, when he knew that there was a long, clear space on the track along which the cars could run gradually until they came to a stop.

The accident happened on November 23, 1916, a little after 5 o'clock in the afternoon. It was raining and getting dark, and the plaintiff and the other members of his crew had their lamps lighted.

Stetson, Jennings & Russell, of New York City (William C. Cannon, R. L. Von Bernuth, and Coulter D. Young, all of New York City, of counsel), for plaintiff in error.

Sydney A. Syme, of Mt. Vernon, N. Y., for defendant in error.

ROGERS, Circuit Judge (after stating the facts as above). [1] Inasmuch as the action has been brought under the federal Employers' Liability Act, the first question to be determined is whether at the time of his injury the plaintiff was actually engaged in interstate commerce. If he were not so engaged, we need not inquire further. To maintain the action it must appear that at the time of the injury he was employed in moving or handling cars engaged in interstate commerce, or performing an act SO directly and immediately connected with the act of moving or handling such cars as as to be a part of it or a necessary incident thereto. From what has already been, said, it is apparent that he had been engaged in shifting a string of cars from yard A to yard E. It is conceded that some of the

1 There was no direct evidence in the case as to where the colliding car came from. The circumstances indicate quite conclusively, however, that it came from the hump

cars in that string were engaged in interstate commerce. Some of the cars contained freight transported from other states into the state of New Jersey, and some of the cars contained freight which was being transported from the state of New Jersey to other states, and remaining cars contained freight which was being transported between points wholly within the state of New Jersey; and it was stipulated that the next switching movement, subsequent to the occurrence of the accident, which was made by the switch engine and switching crew to which plaintiff belonged, consisted in moving three cars containing coal which had been transported from the state of Pennsylvania into the state of New Jersey.

The defendant insists that the plaintiff had completed the switching operation he had been engaged in, and was injured while on the way back to receive orders which would require the beginning of a new operation. On the other hand, the plaintiff argues that the engagement was not completed until he had rejoined his engine, and that his walking back for that purpose was necessarily the final act in the operation first engaged in. The defendant relies upon Erie Railroad Company v. Welsh, 242 U. S. 303, 37 Sup. Ct. 116, 61 L. Ed. 319, and insists that the facts in that case are similar to those in this. In that case the plaintiff was, and for some time had been, a yard conductor, engaged in miscellaneous services in the way of switching and breaking up and making trains under the orders of the yardmaster, and had to apply frequently to the latter for such orders. On the night of the accident the plaintiff, with a yard crew, took a freight car loaded with merchandise destined to a point without the state into the classification yard, and placed it on a siding, where it was left, then proceeded a short distance further with an interstate caboose, and left it on a different track, then took the engine to a water plug and took on water, and started back with the engine to the yard from which it originally came, slowing down on the way near the yardmaster's office, where the plaintiff jumped off to get further orders. In jumping, his feet became entangled in signal wires, and he was thrown under the engine and injured. It appeared that the orders he would have received, had he not been injured on his way to the yardmaster's office, would have required him immediately to have made up an interstate train. The court held that he could not maintain his action, as he was not at the time engaged in interstate commerce.

We do not, however, agree that the facts in that case are so similar to the facts in this case that the decision in that must be regarded as decisive in this. There were three distinct acts involved in that case. The first was an act in interstate commerce. The second was in intrastate commerce. The third act of taking on water may be disregarded as being preparatory to whatever work might next be engaged in. The act of intrastate commerce intervened between the act of interstate commerce and the injury.