I dissent.
I think the deceased watchman was not engaged in work so closely related to interstate commerce as to be a part of it. Unless he was so employed at the precise time of the accident, the commission had jurisdiction to award compensation. It is urged in support of the petitioner's claim that the deceased was at that time engaged in interstate commerce for the reason that his work had for its immediate object, in whole or in part, the keeping of the track in suitable condition for use according to schedule for interstate traffic — that, in fact, a derailment, or even a slight delay, to an intrastate train may interfere with the interstate traffic at other points along the line. But in my view this argument applies with equal force to the character of the work performed by the trainmen upon the local itself. In the case of either, it is conceivable that the work may be so negligently performed as to cause a congestion of traffic upon the railway, thereby delaying trains carrying interstate commerce. But this is not the true test, for it is well settled that trainmen employed upon a train carrying intrastate commerce exclusively are not engaged in interstate commerce simply because the movement of the train over an interstate highway may bear some relation to the movement of interstate trains. *Page 14
In this case, it was the duty of the watchman to safeguard the lives of the public using the streets, as well as the passengers traveling upon the petitioner's trains. At the time of the accident he was engaged in preventing a collision between the San Jose local and the horse and wagon. If the performance of such duty had any relation to interstate commerce, I think the burden was upon the petitioner to prove it. That is, the petitioner ought to have shown that the watchman, in the situation presented, should have reasonably contemplated that the result of the collision would actually be to interfere with the passage according to schedule of interstate trains. No such evidence was offered. It is shown that train No. 102, a through train to New Orleans, left San Francisco at 5 P. M., while the San Jose local left twenty minutes later. It does not appear, however, when an interstate train, going in either direction, was scheduled to pass the crossing after the accident, which happened at 5:57 P. M. Furthermore, there is no showing that a derailment might be caused by the train striking a horse and wagon. Indeed, the slight delay resulting from stopping to investigate such a collision would, under ordinary circumstances, probably not have interfered, even in a remote sense, with interstate traffic. Upon the record presented here, I think it must be held on principle that the watchman was engaged in work related purely to intrastate commerce, and that the possible bearing of the accident upon the interstate commerce carried by the petitioner is too remote to deprive the state of jurisdiction. (Louisville N. R. Co. v. Barrett, 143 Ga. 742, [85 S.E. 923].)
Nor is the contrary view supported by the authorities. It is true, under the decisions of the United States supreme court, that men employed in the repair of bridges, tunnels, station-houses, coal-pits, overhead trolley wires, and the like, where such instrumentalities are used indiscriminately by carriers of both interstate and intrastate commerce, are engaged in interstate commerce. The reason is clear, since the very labor and materials the workman performs or uses in making repairs promote the operation of trains carrying interstate commerce. A workman, for instance, replacing a broken rail on a bridge over which interstate trains must pass, is directly engaged in the performance of a duty for the protection of such trains. The mere fact that other trains carrying only intrastate commerce may also pass over the same *Page 15 bridge does not make the rail any the less a part of an instrumentality of interstate commerce. But the watchman's work here at the time of the collision may or may not have affected the interstate commerce of the petitioner.
Texas Pacific R. Co. v. Rigsby, quoted in the majority opinion, is also to be distinguished from the case before us. The sole question determined by the supreme court in that case was whether it was "beyond the power of Congress under the commerce clause of the Constitution to create such a liability in favor of one not employed in interstate commerce" as it had attempted to create by virtue of the Safety Appliance Act. The provisions of that act expressly apply "to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, . . . and . . . used in connection therewith." The court merely held that, in the exercise of its plenary power to regulate commerce among the several states, and because of the interdependency of all trains using the same track, Congress could adopt such an act — that for the proper protection of interstate trains it had authority to regulate the appliances of all cars "used upon a highway of interstate commerce, irrespective of the use made of any particular car at any particular time." As the court declared, "in this respect there is no distinction dependent upon whether the suitor was injured while employed or traveling in one kind of commerce rather than the other."
But the broad power of Congress to require safety appliances upon all trains operating upon a highway of interstate commerce has no relation to the liability of a railroad company to compensate employees injured in the performance of their work by means other than defective or unsafe appliances. This was the conclusion reached in Boyle v. Pennsylvania R. Co., 228 Fed. 266, [142 C. C. A. 558]. In that case an inspector of both interstate and intrastate trains, having just completed his inspection of a train which was engaged at the time in intrastate commerce, was injured by being struck by a second intrastate train approaching from an opposite direction. It was contended that his employment was so closely related to interstate commerce as to be a part of it. One of the considerations urged was "that the prompt and safe movement of an intrastate train is so necessary to the safety and unimpeded movement of interstate trains moving *Page 16 over the same track, that inspection of the intrastate train becomes a part of interstate commerce." As in our case, reliance was placed upon the decisions of the federal courts under the Safety Appliance Act. But the court, in holding that such decisions were not "authority for the contention so broadly made, that acts which are primarily intrastate, become interstate in their nature when they affect the safety or movement of interstate commerce," made this pertinent remark: "While the movement of an intrastate train, like the use of any intrastate instrument, may in some measure affect the safe movement of interstate commerce, we believe that in the present case, the inspection of such an intrastate train is so remotely related to interstate commerce that under the tests prescribed by the supreme court it cannot be considered a part of it." The court held that the injured inspector could not recover compensation under the Federal Employers' Liability Act. And so, here, the employment of the watchman at the time of theaccident was so remotely related to interstate commerce as not to be a part of it. The award of the commission should therefore be affirmed.