
    LABON CLEVELAND REXROAD v. WESTERN MARYLAND RAILWAY COMPANY.
    [No. 5,
    April Term, 1932.]
    
      Decided May 18th, 1932.
    
    The cause was argued before Bond, O. J., ITrner, Adkins, Ofeutt, Digges, Parke, and Sloan, JJ.
    
      
      Esleí O. Kelley, with whom was William A. Huster on the brief, for the appellant.
    
      Paul 8. Parsons, with whom was Walter C. Capper on the brief, for the appellee.
   Parke, J.,

delivered the opinion of the Court.

The questions on this appeal arise in an action which was brought under the Federal Employers’ Liability Act (45 IT. S. C. A., secs. 51 to 59, inclusive). The railway carrier sued is the Western Maryland Railway Company, a corporation, which is engaged in interstate and intrastate commerce, and the plaintiff, Labon C. Rexroad, is a machinist’s helper in the hire of the Dickson Construction & Repair Company, a corporation. The defendant owns the railway property and runs its trains, but employs the last-named company to do its labor (a) in the repair, inspection, and maintenance of its rolling stock and other equipment; (b) in the operation and maintenance of its railway shops, roundhouses, power plants, and other structures and facilities; (c) in the necessary attention at terminals to locomotives, and in the handling of express, baggage, and mail; (d) in the operation of wrecking outfits; and (e) in miscellaneous minor services which do not concern the operation of trains in intrastate or interstate movement. Pursuant to this contract, the Dickson Construction & Repair Company was» operating the roundhouse of the railway company at Ridgely, West Virginia, where the locomotives used in either interstate or intrastate commerce were repaired, and where the plaintiff was employed by the Dickson Construction & Repair Company at the happening of the accident which injured the plaintiff.

The accident was at night. A locomotive had been brought into the roundhouse/ and a machinist and the plaintiff were engaged in making the necessary repairs. The interior of the roundhouse was well illuminated, but, because of the location of the lights», of the position of certain piers and of the engine being repaired, and of the proximity of an engine on an adjacent track, a shadow was thrown, which darkened slightly the cement floor space where the plaintiff was at work, and required tke occasional use by tke workers of small oil torches. Tke locomotives are equipped witk a dark piece of convexo-concave metal, about thirteen inckes long, eight inckes wide, and six inckes high, tkat is used to replace a derailed engine or car upon tke rails. Tkis device had been taken off tke tender of tke engine, where it is usually kept, and put nearby in tke shadow, without tke plaintiff becoming aware of this circumstance. Tke testimony is tkat, wken tke repairs to a locomotive are so- extensive as k> require two- or three days, various parts are laid on tke floor, but tkat tkis is not tke practice wken the job is not so general, as was tke ease in tke present instance, wkick was tke i*emoval'and replacement of tke reach rod or bar. Tke rod wás eleven feet long’, three inckes wide, and three-fourths of an inch thick, and weighed 125 or 150 pounds. Tke machinist and kis helper, tke plaintiff, took tke rod down, and tke plaintiff and tke machinist were holding it, and, while carrying kis end and backing away from tke locomotive, tke plaintiff struck kis keels against tke metal device, wkick was lying unobserved in tke shadow, tripped, and fell backward, witk the heavy rod upon him, and was injured.

In order tkat tke plaintiff may recover under tke Federal Employers’ Liability Act for kis injury, kis employer must be a common carrier engaged in interstate commerce by railroad, and so- engaged at tke time of tke accident, wkick must have happened through tke negligence of tke carrier or its servants, while tke servant was employed by tke carrier in suck commerce. Federal Employers’ Liability Act, sec. 1 (45 U. S. C. A., sec. 51) ; Erie R. Co. v. Welsh, 242 U. S. 303, 37 S. Ct. 116, 61 L. Ed. 319; Toledo etc. Ry. Co. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed. 513. As a general rule, the application of tkis statute is to* tke carrier’s own servants.

Tke first difficulty encountered is tkat the plaintiff was not an employee of tke railway company wken tke injury was received, but of an independent contractor, whose obligations to tke carrier and relation to interstate commerce have been stated in tkis opinion at sufficient length to indicate their nature. However, section 5 of the statute enacts that “any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent'be void.” U. S. C. A., title 45, see. 55, p. 506. Unless this contract between the public carrier and the employer of the plaintiff is a contract or device whose purpose or intent is to enable the carrier to exempt itself from any liability created by the Federal Employers’ Liability Act, the plaintiff is not within the terms. Sections 1 and 5 of the Federal Employers’ Liability Act; Roberts on Federal Liabilities of Carriers (2nd Ed.), secs. 932-942.

It does not appear that the Dickson Construction & Eepair Company was, in fact or in contemplation of law, the agent of the carrier when the former corporation employed its servants. There is no proof, apart from the contract itself, that the contract was a device conceived with the purpose or intent to enable the carrier to exempt itself from any liability created by the statute; and, while it is true the service provided by the company was made subject to certain limitations, which were ascribable to the exigent and paramount demands of railway transportation and its commensurate requirements, the company controlled its own service through its selected servants, whose duties it fixed and defined, whose-work it directed and supervised, whose wages it set and paid; and whose removal was at its pleasure. Robinson v. Balto. & O. R. Co., 237 U. S. 84, 35 S. Ct. 491, 59 L. Ed. 849; Linstead v. Chesapeake & O. R. Co., 276 U. S. 28, 33, 34, 48 S. Ct. 241, 72 L. Ed. 453, 455, 456; Klar v. Erie R. Co., 118 Ohio St. 612, 162 N. E. 793, certiorari denied 279 U. S. 818, 49 S. Ct. 342, 73 L. Ed. 975; Chicago, R. I. & P. R. Co. v. Bond, 240 U. S. 449, 36 S. Ct. 403, 60 L. Ed. 735; Chicago & Alton R. Co. v. Wagner, 239 U. S. 452, 36 S. Ct. 135, 60 L. Ed. 379; Philadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 603, 32 S. Ct. 589, 56 L. Ed. 911; Wells Fargo & Co. v. Taylor, 254 U. S. 175, 41 S. Ct. 93, 65 L. Ed. 205. Compare: Continental Ins. Co. v. United States, 259 U. S. 156, 171, 42 S. Ct. 540, 66 L. Ed. 871, 884; Erie R. Co. v. Margue (C. C. A.), 23 Fed. (2nd) 664; Erie R. Co. v. Orozco (C. C. A.), 27 Fed. (2nd) 1017.

The court, however, will refrain from a determination of whether or not this contract comes within the denunciation of section 5, because there is no necessity, in view of our conclusion with respect to the nature of the plaintiff’s employment at the time of his injury. Assuming, but without so deciding, that the plaintiff must be considered an employee of the defendant by force of section 5, the test whether he was, at the time of his injury, engaged in interstate commerce within the meaning of the act, is, Was he engaged in interstate transportation or in work so closely related to such transportation as to be practically a part of it? Chicago & N. W. R. Co. v. Bolle, 284 U. S. 74, 52 S. Ct. 59, 76 L. Ed. 2, decided November 23rd, 1931; New York, N. H. & H. R. Co. v. Bezue, 284 U. S. 415, 52 S. Ct. 205, 76 L. Ed. 258, decided January 25th, 1932; Chicago & E. I. R. Co. v. Industrial Commn., 284 U. S. 296, 52 S. Ct. 151, 76 L. Ed. 204, decided January 4th, 1932; Balto. & O. Southwestern R. Co. v. Burtch, Administratrix, 263 U. S. 540, 543, 44 S. Ct. 165, 68 L. Ed. 433, 437; Boyer v. Pennsylvania Ry. Co., 162 Md. 328, 159 A. 909.

Although the proof is that the locomotive was of a small type that was employed in the railway yard, the testimony is indefinite and unsatisfactory with reference to the time of the accident, and the particular locomotive undergoing repair. At best, the plaintiff’s testimony goes no further than tending to show that he was injured while repairing a certain type of railway locomotive which was not used exclusively in one kind of transportation, but which was operated indiscriminately in either intrastate or interstate transportation, without its being ascertained from what form of transportation it was withdrawn or to which it was, after the interval of repair, allocated. So far as this record discloses, the work in which plaintiff was engaged at the time of his injury had no proximate relation to any element of interstate transportation. Minneapolis etc. R. Co. v. Winters, 242 U. S. 353, 359, 37 S. Ct. 170, 61 L. Ed. 358; Erie R. Co. v. Welsh, 242 U. S. 303, 37 S. Ct. 116, 61 L. Ed. 319; Roberts, Federal Liabilities of Carriers (2nd Ed.), sec. 765, p. 1469; Hines v. Industrial Accident Commn., 184 Cal. 1, 192 P. 859, certiorari denied 254 U. S. 655, 41 S. Ct. 218, 65 L. Ed. 459; Conklin v. New York Central R. Co., 206 App. Div. 524, 202 N. Y. S. 75, affirmed 238 N. Y. 750, 144 N. E. 895, certiorari denied 266 U. S. 607, 45 S. Ct. 93, 69 L. Ed. 465; Morini v. Erie R. Co., 227 App. Div. 822, 237 N. Y. S. 375, affirmed 253 N. Y. 539, 171 N. E. 773; Bissett v. Lehigh Valley R. Co., 102 N. J. Law, 283, 132 A. 302, affirmed 103 N. J. Law, 172, 134 A. 915; New York, N. H. & H. R. Co. v. Bezue, 284 U. S. 415, 52 S. Ct. 205, 76 L. Ed. 258, decided January 25th, 1932; Onley v. Lehigh Valley R. Co. (C. C. A.), 36 Fed. (2nd) 706; Wise v. Lehigh Valley R. Co. (C. C. A.), 43 Fed. (2nd) 694. Compare: New York Central R. Co. v. Marcone, 281 U. S. 345, 50 S. Ct. 294, 74 L. Ed. 892; Industrial Accident Commn. v. Davis, 259 U. S. 182, 42 S. Ct. 489, 66 L. Ed. 888.

The locomotive was withdrawn from service for repair, and this withdrawal was not a mere temporary or emergency interruption of the locomotive’s continuous use in the course of a movement in interstate transportation. At the time of the accident it was so dismantled as not to be capable of operation, and the labor requisite to restore it to usefulness had to be first done, and the nature of the transportation in which it would be next used was undetermined and dependent upon conditions and circumstances which varied from hour to hour, and therefore made unpredictable whether the next railway use would be interstate or intrastate. The proof that the engine when repaired might be used in either form of transportation does not bring an employee engaged in repair work, while the engine is so temporarily withdrawn from service, within the statute, and the plaintiff therefore cannot recover in this action. Supra. This conclusion renders it unnecessary to consider the other questions on the record.

Judgment affirmed, with costs.  