The facts relating to the employment of George Ernest Higginbotham, the character of the work which he was employed to do and was doing at the moment he was killed, and the facts relating to the cause and manner of his death, are all stated in our original opinion and need not be repeated in detail.
If, as contended by counsel for the defendants, the Public Belt Railroad Commission is a common carrier by railroad engaged in interstate commerce and the Huey P. Long Bridge, which spans the Mississippi River, is an instrumentality used in interstate commerce, plaintiffs' cause of action, if any they have, arises under, and is controlled by, the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, which we quoted in our original opinion.
The reason is obvious. Plaintiffs allege, and the testimony shows, that Mr. Higginbotham was killed while at work and that he "was engaged by said defendants as Maintenance man on the Huey P. Long Bridge", and that "in line with and pursuant to his duties he was standing on *Page 539 the bridge on the West bank of the river taking soundings of the various piers and construction work to better ascertain that all was in good order".
While it is alleged that the deceased was "taking soundings of the various piers" of the bridge, it is conceded by counsel for plaintiffs that the deceased was using a plumb line to determine the horizontal movement, if any, of the piers of the bridge. The purpose of the work which deceased was engaged to do, and was doing at the time of his death, was to determine whether any defect in the structure had arisen — in short, to ascertain whether the piers of the bridge had gotten out of plumb. It was proved at the trial that this character of work is a necessary part of the maintenance of the bridge. Therefore, the deceased was engaged to do, and at the time of his death was doing, work relating to the maintenance and repair of that structure.
It is settled beyond question that one who is engaged in the repair or the keeping in suitable condition of a bridge used at the time as an instrumentality in interstate commerce is, while so working, employed in interstate commerce. The reason is that such work is so closely related to interstate commerce as "to be in practice and in legal contemplation a part of it".
In the case of Martin Pedersen v. Delaware, Lackawanna Western R. Co., 229 U.S. 146, 33 S.Ct. 648, 649, 57 L.Ed. 1125, Ann.Cas. 1914C, 153, it was held that an employee of an interstate carrier killed *Page 540 while carrying a sack of bolts to be used in repairing a bridge regularly in use both in intrastate and interstate commerce was employed in interstate commerce within the meaning of the Federal Employers' Liability Act.
In the course of its opinion, the court said:
"Tracks and bridges are as indispensible 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. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct `any defect or insufficiency * * * in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment' used in interstate commerce. But independently of the statute we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. * * *
"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." *Page 541
In the case of Peak v. Pennsylvania R. Co., 121 Pa. Super. 373,184 A. 295, 297, the court held that:
"An employee engaged in repairing a bridge or track regularly used in both interstate and intrastate commerce is employed in interstate commerce." (Citing the Pedersen case.)
It is not here argued, nor has it been contended in any case so far as we know, that a bridge traversed by a railroad engaged in interstate traffic is not an instrumentality used in interstate commerce. Bridges are as indispensible to interstate commerce by railroad as are main line tracks, side tracks, switch tracks, crossings, and engines. These are all essential to the movement of cars, and are classed together as instrumentalities used in interstate commerce.
In Hamilton v. Louisiana Ry. Nav. Co., 162 La. 841,111 So. 184, the plaintiff was injured while carrying timbers about to be used in the repair of a siding in the yard of the defendant railroad company, which was a common carrier engaged in interstate commerce. He sued the railroad company for compensation under the State Workmen's Compensation Law (Act No. 20 of 1914, as amended). We held that plaintiff was employed in interstate commerce and that the Federal Employers' Liability Act applied.
In the case of New York Central R. Co. v. James Winfield,244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045, L.R.A. 1918C, 439, Ann.Cas. 1917D, 1139, the facts were that Winfield was a section laborer assisting *Page 542 in the repair of the carrier's main line track, and, while so working, sustained an injury to his eye. He sued the railroad company, an interstate carrier, for compensation under the Workmen's Compensation Law of New York (Consol. Laws, c. 67). The court held that he was employed in interstate commerce and that an award in his favor under the state law could not be sustained. While numerous other cases to the same effect might be cited, it is unnecessary to cite them because this particular point is settled.
The present suit was brought against the Public Belt Railroad Commission and the City of New Orleans to recover compensation under the State Workmen's Compensation Law. The reason the Commission and the city were both made defendants is that the deceased was employed by the Commission, which is, under the law, an agency of the city, and that the Commission built and now maintains, controls, and operates both the Public Belt Railroad and the Huey P. Long Bridge, on which the deceased was employed to work and was working at the time of his death.
The defense is that plaintiffs have no cause or right of action under the state law because the Public Belt Railroad Commission is a common carrier by railroad and is actually engaged in interstate commerce; and further, that the Huey P. Long Bridge is an instrumentality used in interstate commerce; that the deceased, having been employed by the Public Belt Railroad Commission to do maintenance work on that bridge, was employed in interstate commerce, and consequently plaintiffs' *Page 543 claim, if they have any, arises under, and is controlled by, the Federal Employers' Liability Act. It is material and therefore necessary for us to decide whether the Public Belt Railroad Commission is a common carrier by railroad and is engaged in interstate commerce, and whether the Huey P. Long Bridge is an instrumentality used in interstate commerce.
The Public Belt Railroad was organized and built under an ordinance of the City of New Orleans, which ordinance was filed in evidence. The Public Belt Railroad Commission was authorized by that ordinance to construct, maintain, and operate a double-track public belt railroad in the City of New Orleans, together with all necessary spur tracks, sidings, switch tracks, depots, wharves, shops, and stations; and authorized to operate the said railway for transportation of merchandize and freight in carloads or less than carloads. The ordinance provided "that the Public Belt Railroad shall receive and transport passengers, tonnage and cars, loaded or empty, without delay or discrimination, for any and all railroads, public carriers, firms, corporations, or individuals, without distinction".
That ordinance, in substance, was read into, and made part of, Section 28, Article 14, of the Constitution of 1921, as amended by Act No. 154 of 1928. That article of the Constitution, as amended, authorized the Public Belt Railroad Commission to "construct, maintain and operate railroads, terminals, depots, watercraft and other railroad facilities, and to acquire same either *Page 544 by purchase or lease, by expropriation, or otherwise".
It is undisputed that the Public Belt Railroad Commission built, and now maintains and operates, the Public Belt Railroad of the City of New Orleans, and that the Commission is now, and for many years has been, engaged in the character of business authorized by the ordinance and the Constitution.
The article and section of the Constitution above cited authorized the City of New Orleans, acting through the Public Belt Railroad Commission, to construct, maintain, and operate a bridge across the Mississippi River at or near New Orleans. Pursuant to that authority, the Commission built the Huey P. Long Bridge. It was built as "a bridge for railroad, railway and highway uses". The Constitution provides that the power and authority of the Commission to operate and maintain the bridge, "insofar as a bridge for railroad and railway uses is concerned, shall be exclusive". The Commission was authorized to acquire by purchase or lease, by expropriation or otherwise, lands or other things necessary for the construction and maintenance of the bridge and to "change any roadway, non-navigable stream or drain over which the approaches of such bridge or any other part of the Public Belt Railroad system of the City of New Orleans shall extend".
It thus appears that the Public Belt Railroad and the Huey P. Long Bridge were built and are maintained, controlled, and operated by the same authority or agency, the Public Belt Railroad Commission of the City of New Orleans, and, as shown by *Page 545 the testimony to which we shall presently refer, the two, in so far as their practical uses are concerned, are so linked together as to comprise one continuous transportation system.
As to the character of business engaged in by the Public Belt Railroad Commission, the testimony shows that it handles by carrying over its lines cars of freight from wharves to industries and vice versa; cars from points on its lines to interchange with the other rail carriers which enter the City of New Orleans, the cars being destined to various points in the United States. It picks up cars brought into the City of New Orleans by other railroads from points both inside and outside the state, carries them over its tracks, and delivers them to other carriers, which in turn transport them to points beyond the borders of this state, the cars and the freight being destined for through shipment in interstate commerce. It handles freight in less than carload lots in through movement from one railroad to another. It picks up at the wharves of New Orleans freight, such as fruit and especially bananas, brought in from the Tropics by steamship and barge lines, carries it over its tracks, and delivers it to other railroads entering the city, which roads in turn carry it to points beyond the state, such freight being destined originally for continuous movement from the Tropics, through the City of New Orleans, on to points outside this state. It also handles freight brought into the city from without this state by railroads, and carries it to the wharves for further shipment by ships and barges. In short, the Public Belt Railroad Commission serves the railroads which enter the *Page 546 city, the wharves, the industries, for the handling of freight destined for through shipment to and from points both inside and outside the state.
The argument of counsel for plaintiffs that the Public Belt Railroad Commission is not engaged in interstate commerce proceeds upon the theory that, because it is a local facility operating solely within the Parishes of Orleans and Jefferson for the accommodation of railroads, wharves, industries, and shippers generally, it is not itself engaged in interstate commerce even though it handles freight in interstate movement.
But our own jurisprudence is against such theory. In the case of Hamilton v. Louisiana Ry. Nav. Co., cited supra, we said:
"The defendant is a common carrier by railroad, and, although its own line does not extend beyond the limits of the state, yet it connects at both termini with other lines which do extend beyond the state, and a large volume of both interstate and intrastate commerce flows over its rails. Defendant is therefore actually engaged in interstate commerce; and the relative volume of the one business to the other has no bearing on the fact that it is so engaged. Philadelphia R.R. Co. v. Polk, 256 U.S. 332, 41 S.Ct. 518, 65 L.Ed. 958; Chicago K. S.R. Co. v. Kindlesparker (C.C.A.) 234 F. 1.
"It follows, therefore, that defendant's main track and bridges are instrumentalities of interstate commerce, as are also all sidings needed or useful in operating trains carrying interstate commerce." *Page 547
It has been repeatedly held by other state courts and by the Federal courts that a belt-line railroad, operating wholly within a city or other subdivision of a state for the purpose of switching cars between trunk-line railroads, is a common carrier, and that it is, while engaged in carrying freight or passengers en route from one state to another, engaged in interstate commerce. McCallum v. United States, 9 Cir., 298 F. 373 (writ of certiorari denied without opinion, 266 U.S. 606, 45 S.Ct. 92, 69 L.Ed. 464); United States v. Brooklyn Eastern Dist. Terminal,249 U.S. 296, 39 S.Ct. 283, 63 L.Ed. 613, 6 A.L.R. 527; Belt R. Co. v. U.S., 7 Cir., 168 F. 542, 22 L.R.A., N.S., 582; State v. Houston Belt Terminal R. Co., Tex. Civ.App., 166 S.W. 83; United States v. Northern Pacific Terminal Co., D.C., 144 F. 861; Batchelder Snyder Co. v. Union Freight R. Co., 259 Mass. 368,156 N.E. 698, 54 A.L.R. 616; Interstate Stock-Yards Co. v. Indianapolis U.R. Co., C.C., 99 F. 472; Spaw v. Kansas City Term. R. Co., 198 Mo.App. 552, 201 S.W. 927; Busch v. Brooklyn Eastern Dist. Terminal, 218 App. Div. 782, 218 N.Y.S. 516 (writ of certiorari denied, 274 U.S. 739, 47 S.Ct. 576, 71 L.Ed. 1318); McNamara v. Washington Terminal Co., 37 App.D.C. 384; Cott v. Erie R. Co., 231 N.Y. 67, 131 N.E. 737 (writ of certiorari denied, 257 U.S. 636, 42 S.Ct. 48, 66 L.Ed. 409).
As to the Huey P. Long Bridge, the testimony shows that the Public Belt Railroad Commission operates, switches, and transfers cars over the bridge in connection with the interchange between the *Page 548 various railroads, and that the cars carried over the bridge are destined to points outside the state. It shows that the T. N.O.R.R., a trunk line known as the Southern Pacific, operates under contract both passenger and freight trains over the Huey P. Long Bridge. Some of the trains operating over the bridge originate outside the state and bring to New Orleans both passengers and freight from outside the state, and those made up in New Orleans go west to points as far as California, Washington, and Oregon, carrying passengers, baggage, freight, and mail to those points.
Mr. McCloskey, terminal agent for the T. N.O.R.R., testified that eight passenger trains, four going east and four going west, pass over the bridge each day, and that approximately 5000 freight cars go over the bridge each month, and that practically every one of them carries interstate freight.
The testimony as to the character of the business in which the Public Belt Railroad Commission of New Orleans is engaged, and as to the use made of the Huey P. Long Bridge, is not disputed. Our conclusion is, and we hold, that the one is a common carrier by railroad and is engaged in interstate commerce and that the other is an instrumentality used in interstate commerce.
The deceased was employed to work, and at the time of his death was working, on that part of the bridge built and used for railroad purposes. He was employed in interstate commerce.
Clearly plaintiffs' cause of action, if they have any, arises under the Federal Employers' *Page 549 Liability Act, quoted in our original opinion. They therefore have no cause of action under the State Workmen's Compensation Act. In the case of St. Louis, San Francisco Texas R. Co. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129, Ann.Cas. 1914C, 156, it was held that, where the Federal Employers' Liability Act is applicable, the state statute on the same subject is excluded by reason of the supremacy of the former.
This court has so held in at least two cases: La Casse v. New Orleans T. M.R. Co., 135 La. 129, 64 So. 1012, and Penny v. New Orleans Great Northern R. Co., 135 La. 962, 66 So. 313.
Section 30 of the State Workmen's Compensation Law (Act No. 20 of 1914, as amended by Act No. 244 of 1920) provides:
"That this Act shall not be construed to apply to any employer acting as a common carrier while engaged in interstate or foreign commerce by railroad, provided that the employee of such common carrier was injured or killed while so employed."
The same section further provides that, if the injury or killing of the employee of a railroad occurs while "the employer and employee are both engaged and employed at the time in an intrastate operation or movement and said movement or operation is not controlled or governed by the laws, rule of liability or method of compensation which has been or may be, established by the Congress of the United States, then this Act shall govern and compensation shall be recovered hereunder".
Neither the employer nor the employee was engaged at the time deceased was killed *Page 550 "in an intrastate operation or movement". Deceased was killed while doing work in connection with the repair and the keeping in a fit condition of the bridge which is an instrumentality in interstate commerce.
Counsel for the plaintiffs argue that the Interstate Commerce Commission has no power or control over the Public Belt Railroad, for the reason that the State of Louisiana, under its sovereign power, commanded the City of New Orleans to continue the operation of said railroad through a commission, it being provided in Section 26, Article 14, of the Constitution of 1921, that "Said Public Belt Railroad system shall be and remain the sole property of the people of the City of New Orleans at all times, and shall in no way or manner ever be hypothecated or alienated".
Counsel's theory seems to be that, in as much as the Public Belt Railroad is the property of the people of the City of New Orleans and is operated by the city through an agency created by law, the Federal statutes regulating interstate commerce have no application to it, because it is, in fact, being operated by the state itself. The same argument was made in the case of United States v. California, 297 U.S. 175, 56 S.Ct. 421, 425, 80 L.Ed. 567. Practically the same situation was presented in that case as in the case at bar, and it was held that the State of California, being engaged in interstate commerce by rail, had subjected itself to the commerce power of the United States. In the course of its opinion, the court said: *Page 551
"No convincing reason is advanced why interstate commerce and persons and property concerned in it should not receive the protection of the act whenever a state, as well as a privately-owned carrier, brings itself within the sweep of the statute, or why its all-embracing language should not be deemed to afford that protection."
True, the court was considering the Federal Safety Appliance Act, 45 U.S.C.A. § 1 et seq. But the principle there announced is applicable to the case at bar.
For the reasons assigned, the judgment of the Court of Appeal for the Parish of Orleans (Higginbotham v. Public Belt R. Comm., 181 So. 65), sustaining the exception of no right or cause of action tendered by the respondents, now before us for review, under the writ of certiorari herein granted, is affirmed. The right of the plaintiff to apply for rehearing is reserved.