three cars attached to the engine; the rear one consigned to Duluth, and to be switched to another track; the next consigned to Minneapolis; both loaded. The coupler on the Minneapolis car was out of order, and there was evidence that it had been marked for repairs and was to be switched to the repair track before going farther. Plaintiff was injured while uncoupling the cars, the injury being due to the defective coupler. The defendant argued that the car had been withdrawn from interstate commerce; that the Safety Appliance Act required it to remove the car for repairs, and that its effort to comply with the statute could not constitute a tort; and that the plaintiff was the person entrusted by it with the details of the removal and could not make it responsible for the mode in which his duty was carried out. It appeared, however, that the car, without being unloaded,

was carried to Minneapolis the next day. It was held that the plaintiff was engaged in interstate commerce at the time of his

injury, and entitled to recover under the Employers' Liability Act. Speaking of the car in question, the Court, in part, said:

"It had not been withdrawn from interstate commerce, but merely subjected to a delay in carrying it to its destination. At the moment of the accident it was accessory to switching the Duluth car. It does not seem to us to need extended argument to show that the car still was subject to the Act of Congress."

Switching Interstate Cars in Yard Before Reaching Destination.-The plaintiff was employed as a switchman in the defendant's yards. Two loaded coal cars coming from without the state were received in the yards. They were destined to a private track connecting with the yards, and acting under instructions plaintiff commenced the switching movement requisite to place them on such track. There was evidence tending to show that in order to complete this movement it became necessary to uncouple

(7) Great Northern R. Co. v. Otos, 239 U. S.

349.

the engine from the loaded cars and with it to remove two empty ones from the private track. While engaged in removing the empty cars, plaintiff was injured. It was held that the trial court properly submitted to the jury the question whether or not the plaintiff was engaged in interstate commerce, and a finding in the affirmative was sustained.8

Moving Intrastate Cars from Point to Point in Same City.-One employed on a switch engine in moving a number of cars, all loaded with intrastate freight, from one point in a city to another point in the same city, is not engaged in interstate commerce. "That he was expected, upon the completion of that task, to engage in another which would have been a part of interstate commerce is immaterial under the statute, for by its terms the true test is the nature injury." of the work being done at the time of the

On Way to Boarding House After Preparing Engine to Haul Empty Cars.-Deceased, a locomotive fireman, after inspecting, oiling, firing, and preparing his engine for starting on a trip to another state, but before the engine had been attached to any of the cars of the train, attempted to cross certain tracks which intervened between the engine and his boarding-house, and was struck and killed by an engine running on one of said tracks. There was some contention that the cars making up the train to be hauled were empty; this because their contents were not proved. It was held that deceased was employed in interstate commerce at the time he was struck and killed. The court held that the hauling of empty cars from one state to another is interstate commerce. On the question whether deceased was still engaged in interstate commerce while going to his boarding-house, the Court said:

(8) Pennsylvania Co. v. Donant, 239 U. S. 50, aff'g 224 Fed. 1021.

(9) Illinois Cent. R. Co. v. Behrens, 233 U : S. 473.

"Assuming (what is not clear) that the evidence fairly tended to indicate the boarding-house as his destination, it nevertheless also appears that deceased was shortly to depart upon his run, having just prepared his engine for the purpose, and that he had gone beyond the limits of the railroad yard when he was struck. There is nothing to indicate that this brief visit to the boarding-house was at all out of the ordinary, or was inconsistent with his duty to his employer. It seems to us clear that the' man was still 'on duty,' and employed in commerce, notwithstanding his temporary absence from the engine.'

9910

Engineer on Way to Inspect Engine Before Making Run.-The deceased, engineer of an interstate train, finished one-way of his run, left his engine in the yard near the roundhouse, was detained in the yards for a time, went to the boarding house patronized by the railroad men, found it full, and went back to the roundhouse, into an engine, and went to sleep. He was due to take his regular run at 6:10 the following morning. About 4:30 the next morning the engine in which he was sleeping was run out of the roundhouse, down to a coal chute, to be supplied with coal, water, etc., for its trip. Deceased waked at the chute, got off the engine, inquired where his engine was to be found, was informed as to its location, and then started in that direc

tion.

That was the last seen of him alive. Later he was found in an open, uncovered pit in the roundhouse, dead. His engine had been standing with the step over the pit, which was over eight feet deep, and was unlighted. It was held by the State Court that deceased was engaged in interstate commerce at the time he met his death, and this decision was affirmed by the United States Supreme Court.

In its opinion, the State Supreme Court said: "The exact question is: For what

(10) North Carolina R. Co. v. Zachary, 232 U. S. 248, 9 N. C. C. A. 109, Ann. Cas. 1914C 159, rev'g 156 N. C. 496.

purpose did Padgett (deceased) go into the roundhouse? If he went there for any purpose of his own, or there is an utter failure of evidence to prove any circumstance from which his purpose can be inferred. then the verdict ought to have been directed. There was evidence to show that, when the engine came into the yard that night, it had a hot box and needed repairs; that the rule required the engineer to inspect his engine only about an half hour before the leaving time. There was no intimation that he was forbidden to inspect it before. There was evidence that, if the inspection was made at the required hour and it was found that the repairs had not been made or improperly made, then the engine would have to be returned to the roundhouse to have the repairs properly made; that the repairs would take time, and the time necessary would have to be taken even if it delayed the departure of his train. The evidence is circumstantial, but conclusions may be drawn from circumstances. Of course, he had a right, under the rules to loaf around until the exact minute that the rule required him to take his engine. and if error had occurred in the mechanical department, he had the right to send the engine back and delay the train. Would a faithful servant be likely to do that? That was a question for the jury. Would a man recently promoted stand upon the strict letter of the rule?"11

Mining Coal to be Used in Interstate Commerce.-The fact that the coal which an employe is engaged in mining is to be used in interstate commerce after being transported does not make his employment one in such commerce. "The injury happening when plaintiff was preparing to mine the coal was not an injury happening in interstate commerce, and the defendant was not then carrying on interstate commerce,

(11) Seaboard Air Line Ry. v. Padgett, 236 U. S. 668, aff'g S. C., 83 S. E. 633.

facts essential to recovery under the Employers' Liability Act."12

Wheeling Coal to Heat Shop Where Interstate Cars Are Repaired.-An employe of the defendant was injured while wheeling coal to heat the shop in which other employes were engaged in repairing cars that had been and were to be used in interstate commerce. It was held by the State Court that the employe was employed in interstate commerce. In part, the State Court said: "That the men engaged in repairing the cars were employed in interstate commerce is well settled. That an employe carrying materials to the shop to be used in repairing the cars would be employed in interstate commerce the Pedersen case decides. It seems no extension of the construction thus given to the statute to hold that an employe carrying coal for use in heating the shop where the repairs were made is employed in interstate commerce. The repairs could not be made unless the shop was heated. It is not material what our own views are on the proper construction of the federal statute. We are bound by the decisions of the Supreme Court of the United States."

The last mentioned Court, however, reversed the state Court, holding that the employe was not engaged in interstate commerce.13

Switching Coal to be Used in Interstate Engines.—At the time of the death of deceased, he was engaged in switching coal, belonging to defendant, from a storage track to a coal shed, where it was to be placed in bins or chutes and supplied, as needed, to locomotives engaged indiscriminately in intrastate and interstate commerce. Held, that he was not engaged in interstate commerce. "It is not important whether he had previously been engaged in interstate commerce, or that it was con

(12) Delaware, L. & W. R. Co. v. Yurkonis, 238 U. S. 439, 59 L. ed. 1397.

(13) Illinois Cent. R. Co. v. Cousins, 241 U. S. 641, 60 L. ed. 1216, rev'g 126 Minn. 172, 6 N. C. C. A. 182.

templated that he would be so engaged after his immediate duty had been performed. That duty was solely in connection with the removal of the coal from the storage tracks to the coal shed, or chutes. This was nothing more than the putting of the coal supply in a convenient place from which it could be taken as required for use."14

Guarding Material to be Used in Construction of Interstate Road. One employed by a railroad company as night watchman to guard tools and material intended to be used in the construction of a new station and new tracks forming an interstate railroad, was not engaged in interstate commerce. "Decedent's work bore no direct relation to interstate transportation, and had to do solely with construction work."15

Carrying Bolts to Repair Bridge.-The plaintiff and another employe, acting under a foreman, were carrying from a tool car to a bridge some bolts, which were to be used by them that night or very early the next morning in repairing the bridge. The bridge could be reached only by passing over an intervening temporary bridge. Both bridges were being regularly used in both intrastate and interstate commerce. While plaintiff was carrying a sack of bolts over the temporary bridge, on his way to the bridge which was to be repaired, he was run down and injured by an intrastate train. Held, that the plaintiff was injured while engaged in interstate commerce, and, hence, that he was entitled to the protection of the Federal Employers' Liability Act.

The following portion of the Court's opinion in this case is of great value: "Among the questions which naturally arise in this connection are these: Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected

(14) Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 60 L. ed. 941, 11 N. C. C. A., 992, aff'g Mo. App., 180 S. W. 443.

(15) New York Cent. R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247, 13 N. C. C. A. 943, aff'g 216 N. Y. 563.

therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars, and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct any defect or insufficiency in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharfs, or other equipment used in interstate commerce. But independently of the statute, we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements and the nature of each determined regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test is: Is the work in question a part of the interstate commerce in which the carrier is engaged? Of course, we are not here concerned with the construction of tracks, bridges, engines or cars which have not as yet become instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities and during their use as such."

The Court further held that it was of no consequence that the men had not commenced the actual work of repair, but were only making things ready for such work. "It was necessary to the repair of the bridge that the materials be at hand, and the act of taking them there was a part of

that work. In other words, it was a minor task which was essentially a part of the larger one, as is the case when an engineer takes his engine from the roundhouse to the track on which are the cars he is to haul in interstate commerce."16

Altering Machinery in Repair ShopAn employe of a railroad company, which was engaged in both interstate and intrastate transportation, was injured while engaged in the work of taking down and putting into a new location an overhead counter-shaft, through which power was communicated to some of the machinery used in repair work. It was held that such employe was not engaged in interstate com

merce.

Said the Court in this case: "Coming now to apply the test to the case in hand, it is plain that Shanks was not employed in interstate transportation, or in repairing or keeping in usable condition a roadbed, bridge, engine, car or other instrument then in use in such transportation. What he was doing was altering the location of a fixture in a machine shop. The connection between the fixture and interstate transportation was remote at best, for the only function of the fixture was to communicate power to machinery used in repairing parts of engines some of which were used in such transportation. This, we think, demonstrates that the work in which Shanks was engaged was too remote from interstate transportation to be practically a part of it."17

Painting Engines and Cars.-The plaintiff was employed by defendant, and at the time of his injury was spraying paint on engines and cars by means of a “paint gun.”

The machine in question was operated by means of air pressure, which caused the air about the operator to become heavily

(16) Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 3 N. C. C. A. 779, 57 L. ed. 1125, Ann. Cas. 1914C 153, rev'g 197 Fed. 537, 117 C. C. A. 33.

(17) Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 60 L. ed. 436, L. R. A. 1916C 797, aff'g 214 N. Y. 413.