Lamphere v. Oregon R. & Nav. Co.

G1RBERT, Circuit Judge (after stating the facts as above). It is conceded that the negligence which caused the death of the plaintiff in error’s intestate was negligence of the latter’s fellow servants, but it is contended that the complaint states a cause of action in that the allegations thereof bring the case within the provisions of Employer’s Riability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322). There are decisions which hold that an employe of a railroad company while going to and from his work is not engaged in the service of his employer, and is not the fellow servant of other employes of *338 the same master, but there are cases holding to the contrary, and, whatever may be the conflict of authority as to the ordinary case of an employe going to and from his work, there can be no question that he is in the service of his master, and is a fellow servant of his co-employes whenever he is doing that which under his contract of employment he is bound to do. Dishon v. Cincinnati, N. O. & T. P. Ry. Co. (C. C.) 126 Fed. 194 ; Olsen v. Andrews, 168 Mass. 261 , 47 N. E. 90 ; Boldt v. N. Y. C. R. Co., 18 N. Y. 432 ; Ewald v. Chicago & N. W. R. Co., 70 Wis. 420 , 36 N. W. 12, 591 , 5 Am. St. Rep. 178 . The deceased when he was killed was not only on his way to work for his employer, but he was proceeding under the direct and peremptory command of the Railroad Company to do a designated specific act in the service of the company, to wit, to move a train then engaged in interstate commerce. He was on the premises of the Railroad Company and in the discharge of his duty when he met his death, and the train which struck him and caused his death was engaged in interstate commerce, and belonged to the same railroad company. Must a fireman be actually in his place of duty on the locomotive of a train which is engaged in commerce between the states in order that he may be said to be employed in interstate commerce? If he is commanded to step down from his train and proceed across the track and take his place on another train engaged in interstate commerce and he is injured while on the way, will it be said that he was not employed in interstate commerce when he received the injury? The case supposed is substantially the case which is now before the court. In Zikos v. Oregon R. & Navigation Co. (C. C.) 179 Fed. 893 , it was held that one who was engaged in repairing the defendant's main track and driving spikes in the ties for the purpose of tightening the joints of the rails was engaged in interstate commerce, and that he could recover for injuries sustained through the negligence of a fellow servant who was also engaged in such commerce. In Colasurdo v. Central R. R. Co. of New Jersey (C. C.) 180 Fed. 832 , where a track walker was injured while assisting his fellow employés in repairing a switch in a railroad yard, the switch being connected with a track used for both interstate commerce and intrastate commerce, it was held that he was engaged in interstate commerce within the Employer’s Liability Act. Said the court: “Would not a track walker engaged in the repair of such a track be engaged in interstate commerce? I do not think he would be any the less so engaged than the engineer on the locomotive or the train dispatcher who kept the trains at proper intervals for safety.” In Behrens v. Illinois Central R. Co. (D. C.) 192 Fed. 581 , the plaintiff’s intestate came to his death through an accident while he was employed as fireman on an engine of a switching crew,- the duties of which were to switch cars that had to move both in interstate and intrastate commerce indiscriminately. Foster, District Judge, said: “I consider that the usual and ordinary employment of the decedent in interstate commerce, mingled though it may be with employment in commerce which is wholly intrastate, fixes his status and fixes the status of the railroad, and the mere fact that the accident occurred while he was engaged in *339 work on an intrastate train, rather than a few minutes earlier or later, when he might have been engaged on an interstate train, is immaterial. If he was engaged in two occupations that are so blended as to be inseparable, and where the employé himself has no control over his own actions, and cannot-elect as to his employment, the court should not attempt to separate and distinguish between them.” In Central R. Co. of New Jersey v. Colasurdo, 192 Fed. 901 , the Circuit Court of Appeals for the Second Circuit affirmed the decision above cited in 180 Fed. 832 , and the court said: “The car winch struck the plaintiff was employed in interstate commerce. Tt connected with defendant's ferry boats at Jersey City, and passengers from New York to Somerville, N. J., and vice versa, were transported in it. The track and switch in question were used by engines and cars so engaged. We think the statute was Intended to apply to every carrier while engaging in interstate commerce, and to an employe of such carrier while so engaged, and, if these conditions concur, the fact that the carrier and the employe may also be engaged in intrastate commerce is immaterial. The plaintiff was repairing an interstate road over which interstate passengers and freight and cars and engines engaged in interstate commerce were constantly passing.” Counsel for the defendant in error contend that the act applies only to employes of. railroad companies who are at the time actually engaged in the movement of interstate commerce, and they deny that edhers, such as those who are employed in the shops of a railroad company where its engines are repaired, or are repairing its tracks or roadbed, are employed in interstate commerce, and they cite the case of Pedersen v. Delaware, L. & W. R. R. (C. C.) 184 Fed. 737 , in which it was held that, although the railroad company was engaged in both interstate and! intrastate business at the time of the plaintiff’s injury, he, being an employé engaged at that time in bridge construction on the track of the company which was to be used for such commerce, was not engaged in interstate commerce. The decision in that case runs counter to the cases above cited, and we think it is also opposed to the doctrine of the recent decision of the Supreme Court in Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1 , 32 Sup. Ct. 169, 56 L. Ed. -. The judgment in that case disposes of three cases involving the application of the Employer’s Liability Act. In one of the cases, the judgment in which was affirmed, the action was brought and damages were recovered by a personal representative of a deceased employé of a railroad company. The complaint alleged that the injury occurred while the defendant as a common carrier was engaged in commerce between some of the states, and while the deceased in the course of his employment by the defendant in such commerce was engaged in replacing a drawbar on one of the defendant’s cars then in use in such commerce. The statement of the facts is meager, but it would appear therefrom that the employé who was injured was not one of a train crew, but was a machinist or repairer whose duty it was to replace drawbars, and that the work was done either in a yard or on a switch, for the injury resulted from the negligence of fellow servants in pushing other cars against the one on which the deceased was working. In the opinion in that case the court madle certain observations concerning the act which we think pertinent to the case at bar. Affirming the power of Congress over commerce *340 among the states as extended incidentally to every instrument and agent by which such commerce is carried on, the court said: “But, of course, it does not extend to any matter or thing which does not have a real or substantial relation to some part of such commerce. * * * Therefore Congress may legislate about the agents and instruments of interstate commerce, and about the conditions under which those agents and instruments perform the work of interstate commerce, whether such legislation bears, or, in the exercise of a fair legislative discretion, can he deemed to bear upon the reliability or promptness or economy or security, or utility of the interstate commerce act.” Said the court again: “The second objection proceeds upon the theory that even although Congress has power to regulate the liability of a carrier for injuries sustained by one employé, through the negligence of another, where all are engaged in interstate commerce, that power does not embrace instances where the negligent employé is engaged in intrastate commerce. But this is a mistaken theory in that it treats the source of the injury rather than its effect upon interstate commerce as the criterion of congressional power. * * * It is not a valid objection that the act embraces instances where the causal negligence is that of an employé engaged in intrastate commerce, for such negligence, when operating injuriously upon an employé engaged in interstate commerce, has the same effect upon that commerce as if the negligent employé were also engaged therein.” As indicated in the opinion, the test question in determining whether a personal injury to an employé of a railroad company is within the purview of the act is, What is its effect upon interstate commerce? Does it have the effect to hinder, delay, or interfere with such commerce ? As applied to the present case, it is this: Was the relation-,of the employment of the deceased to interstate commerce such that the personal injury to him tended to delay or hinder the movement of a train engaged in interstate commerce? To that question we think there can be but one answer. Under the imperative command of his employer, the deceased was on his way to relieve, in the capacity of a fireman, the crew of a train which was carrying interstate commerce, and the effect of his death was to hinder and delay the movement of that train. In our opinion the complaint states a cause of action under the Employer’s Liability Act. The judgment is reversed, and the cause remanded for further proceedings.