
    James H. Barlow, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    Third Department,
    November 12, 1913.
    Railroad—negligence — injury to engineer while under train by starting thereof without warning — Federal Employers’ Liability Act — when engineer engaged in interstate commerce.
    In an action for personal injuries it appeared that the defendant was operating a railroad from a point in New York to a point in Pennsylvania, and that while the plaintiff, employed by the defendant as an engineer on an engine which was engaged in hauling coal from a siding to a trestle at Cortland, to be dumped into defendant’s coal pockets and thereafter used in locomotives engaged in interstate or intrastate commerce, was endeavoring to ñx a brake beam of the tank, the conductor signaled the fireman to back the engine, without warning the plaintiff, and he was caught under the wheels and injured. The case was submitted to the jury under the Federal Employers’ Liability Act.
    
      Held, that although it is not clear that the plaintiff was engaged in interstate commerce within the meaning of the Federal Employers’ Liability Act, yet a judgment in his favor should be affirmed. (Pederson v. Delaware, Lackawanna & Western Railroad, 339 U. S. 146, followed.)
    Appeal by the defendant, Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 18th day of April, 1913, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the. minutes.
    
      
      Tompkins, Cobb & Cobb [Peter F. McAllister of counsel], for the appellant.
    
      Davis & Lusk [Clayton R. Lusk of counsel], for the respondent.
   Lyon, J.:

The important question involved upon this appeal is whether the plaintiff was employed in interstate commerce at the time he received the injuries complained of, and hence whether the .action is maintainable under the Federal Employers’ Liability Act. The material facts are undisputed. A portion of one of the divisions of defendant’s railroad extended from Cortland, N. Y., southerly to Sayre, Penn., and beyond, and from Cortland northerly to Canastota, N. Y., where it intersected the New York Central railroad. During the month of July, 1912, the defendant was running two milk trains each week day and one on Sunday from Cortland through Sayre to points farther south, and was also running trains carrying freight and passengers daily between Cortland and Sayre, and between Cortland and Canastota and other points, connecting with the New York Central railroad, carrying cars and freight consigned to within and without State points. The locomotives drawing these trains northerly did not pass without the State, and those going toward Sayre, excepting those drawing milk trains which ran through to Sayre, were replaced by other locomotives at Elmira, N. Y., or Van Etten, N. Y., excepting upon extraordinary occasions or in emergencies.

On July 27, 1912, three carloads of defendant’s coal contained in cars which could be dumped and which had been shipped by it from Sayre to Cortland, one of which had been received, at the latter place July third and the other two July tenth, and placed on a siding to be used whenever required in coaling defendant’s locomotives, were taken from the siding by defendant’s yard engine, of which plaintiff was the engineer, and pushed on defendant’s elevated coal trestle at Cortland to be dumped into defendant’s coalpockets, from which the coal was to be discharged through shutes into the tenders of defendant’s locomotives, whether used about the Cortland yard or in interstate or intrastate commerce. These coalpockets supplied about forty per cent of the coal used at Cortland by defendant’s locomotives, and the remaining sixty per cent was shoveled into the tenders from flatcars which did not have open bottoms, and, hence, could not be dumped, standing in the Cortland yards.

After the switch engine had pushed the three cars of coal upon the trestle and while standing upon the trestle in charge of the fireman, who, at plaintiff’s request, had temporarily exchanged places with plaintiff, the attention of the plaintiff was called to the fact that one end of the brakebeam of the tank was down, whereupon the plaintiff and another employee of the defendant endeavored to fix it. While the plaintiff was partly under the tank the conductor signaled to the fireman to back the engine, which the fireman did suddenly, without giving any signal, and the plaintiff was caught under the wheels, his right leg severed and other serious injuries inflicted, to recover damages on account of which this action has been brought. Upon the trial it was conceded that the coal contained in the three cars was used in coaling intrastate and interstate locomotives kept in defendant’s roundhouse at Cortland. The trial judge submitted the case to the jury under the Federal statute, charging them that the fact that an employee who- was injured may have been guilty of contributory negligence shall not completely bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of his negligence. The defendant duly excepted to the submission of the case to the jury under the Federal statute, and the validity of such exception furnished the serious question for consideration upon this appeal from the judgment entered upon a verdict in favor of the plaintiff.

The statute entitled “ An act relating to the liability of common carriers by railroad to their employees in certain cases ” (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143; U. S. Comp. Stat. Supp. 1911, pp. 1322, 1324), commonly known as the Federal Employers’ Liability Act, provided, so far as is material to be noticed here, “that every common carrier by railroad, while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier * * *. ”

The crucial question is, was the plaintiff at the time he sustained the injuries complained of employed by the defendant in interstate commerce within the meaning of the act. The only authority necessary to be considered by us is the case of Pedersen v. Delaware, Lackawanna & Western Railroad (229 U. S. 146), which refers to all the leading cases bearing upon the question.

In that case, decided by a divided court, it was held that the plaintiff, who was an ironworker in the employ of defendant, which was engaged in transporting passengers and freight by railroad in both interstate and intrastate commerce, and who was injured through the negligence of a coemployee by being run down by an intrastate passenger train while plaintiff was carrying a sack of bolts to be used in repairing a bridge which was regularly in use in both interstate and intrastate commerce, was employed in interstate commerce withing the meaning of the Federal Employers’ Liability Act. In the prevailing opinion the court says: “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 * * The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged ? * * * True, a track or bridge may be used in both interstate and intrastate commerce, but when it is so used it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce * * *. 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.”

In the dissenting opinion it is said: “Transportation has been defined as commerce, and those engaged in transportation are employed in commerce. * * * It is conceded that a fine must be drawn between those employes of the carrier who are employed in commerce and those engaged in other departments of its business. It must be drawn so as to take in, on one side, those engaged in transportation, which is commerce; otherwise there is no logical reason why it should not include every agent of the company; for there is no other test by which to determine when he must sue under the State statute and when under the act of Congress; for if a man on his way to repair a bridge is engaged in interstate commerce, then the man in the shop who made the bolts to be used in repairing the bridge is likewise so engaged. If they are, then the man who paid them their wages, and the bookkeeper who entered those payments in the accounts, are similarly engaged. For they are all employed by the carrier, and the work of each contributes to its success in hauling freight and passengers.”

The respondent contends that at the time of receiving the injuries he was employed in interstate commerce in two senses, that he was engaged in the work of delivering upon the coal trestle coal which had been shipped from Sayre for that purpose, the delivery of which had been temporarily suspended' during the time the car had remained upon the siding; and that he was engaged in delivering coal to be necessarily used hi part by locomotives employed in hauling trains engaged in intestate commerce. He also contends that to switch interstate cars was to engage in interstate commerce. (Citing Thornton’s Federal Employers’ Liability and Safety Appliances Acts [2d ed.], 48, 49; Johnson v. Southern Pacific Co., 196 U. S. 1.)

Undoubtedly the ultimate destination of the three carloads of coal were the coal pockets which could only be reached by running the cars upon the trestle. Depositing the coal in the pockets was one step towards placing it in the tenders of the locomotives. How different would have been the liability of the defendant if plaintiff had been injured while dumping the coal directly into the tender of the locomotive attached to a train engaged in interstate commerce %

Coal for use in defendant’s locomotives was as indispensable to the defendant engaging in interstate commerce as was a track or safe bridge upon which defendant might operate its trains.

While it is by no means clear that the plaintiff was engaged in interstate commerce within the meaning of that term as used in the Federal Employers’ Liability Act, yet we are inclined under the authority of the Pedersen case to affirm the . judgment.

Judgment and order unanimously affirmed, with costs; Kellogg, J., not sitting.  