ON PETITION FOR REHEARING. Appellant in support of its petition for a rehearing contends that we failed to consider its contention that appellee's decedent at the time of his injury was not engaged in interstate commerce. Having stated the facts as disclosed by the evidence our holding that the answers of the jury to the interrogatories did not preclude the legitimate conclusion that the decedent was engaged in interstate commerce, necessarily was a holding that the evidence was sufficient to sustain the verdict on the theory that he was engaged in interstate commerce, as there could be no recovery except upon that theory.
Appellant in effect concedes that if the car in question had after the decedent's injury been delivered to the shipper at Nappanee and loaded with freight for shipment to another 3. state, the deceased would have been engaged in interstate commerce at the time he was injured. It contends, however, that because the car became disabled and another was substituted in its place, the deceased was not employed in interstate commerce when injured. We cannot agree with this contention. The test to be applied in cases *Page 441 of this kind is, "Was the employee at the time of the injury engaged in interstate transportation, or in a work so closely related to it as to be practically a part of it?" New YorkCentral R. Co. v. White (1917), 243 U.S. 188, 61 L. Ed. 667;Erie R. Co. v. Welsh (1916), 242 U.S. 303, 61 L. Ed. 318.
A switchman who turns the switch that passes a car from the repair shop to the main track to take its place in interstate commerce is engaged in interstate commerce. Suppose such switchman, and the engineer and fireman on the locomotive which was drawing the car and which was on its way from the round-house to draw a train loaded with freight in interstate commerce, should be injured or killed, could the railroad evade liability under the Federal Employers' Liability Act by withdrawing the locomotive from service and substituting another in its place? We think not. The car in question had been set aside for use in interstate transportation. It had been iced and started on its way to be loaded. It was in transit for use in interstate business and the fact that it was later taken out of service and another substituted did not change the character of the work which had theretofore been performed in icing it and getting it ready for the intended use.
Appellant was engaged in interstate commerce. This being true, we are only concerned with the nature of the decedent's work at the time of his injury. The Supreme Court of the United States inPedersen v. Delaware, etc., R. Co. (1913), 229 U.S. 146, 57 L. Ed. 1125, in discussing a similar question, said: "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 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 *Page 442 the nature of a duty resting upon the carrier?" And, after calling attention to the contention that interstate commerce can be separated into its several elements, and the nature of each be determined, regardless of its relation to the business as a whole, the court said: "But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?"
Appellant, in the instant case, was preparing a car for use in interstate commerce. It had set the particular car aside for use in that business. The decedent was preparing that car for 4. that particular business. The icing of the car was necessary to its use in that business. As was said inLloyd v. Southern R. Co. (1914), 166 N.C. 24, 35,81 S.E. 1003, 7 N.C.C.A. 520: "His work was done in a preparatory stage of interstate commerce, but was none the less part of it." SeeArmbruster v. Chicago, etc., R. Co. (1924), 166 Iowa 155, 147 N.W. 333, where an employee was coaling an engine preparatory for service in hauling freight from one state to another. We hold the decedent at the time of his injury was employed in interstate commerce.
Appellant contends the court erred in giving instruction No. 9. The contention is that this instruction stated that the mere fact that the tools used by the decedent were defective was proof of negligence. But we do not think the instruction is subject to this objection. This instruction told the jury that appellant was only required to exercise ordinary care to furnish tools reasonably safe for the use of which they were intended, and the same idea was expressed in instruction No. 8. When the whole of instructions Nos. 8 and 9 are considered, appellant's contention cannot be sustained.
Appellant says it also "questioned the ruling of the court in allowing the appellee to prove certain issuable *Page 443 facts by the opinion of witnesses." We are of the opinion, however, that no reversible error is shown in the admission of the evidence of which complaint is made.
The decedent had been in appellant's employment a number of years. When injured, he was fifty-one years old, healthy, industrious, and of good habits. He was earning about 5. $2,100 a year, all of which was expended for the support and maintenance of his family, which consisted of himself, his wife and four sons, ranging in ages from twelve to twenty years. While the amount of the verdict is quite substantial, we are not prepared to hold as a matter of law that it is excessive.
Petition for rehearing denied.