I do not concur in the reasons adduced or the conclusion reached in the majority opinion.
The correctness, in the main, of the statement of the case made by my learned associate, I do not question. I do not, however, deem it inappropriate to state the facts, as I read this record, prefatory to a discussion of the applicable law.
The plaintiff, at the time of his injury, had for five years been employed as a switchman by the defendant. When the accident occurred, which resulted in the loss of one of the plaintiff's legs, he was working for defendant in the yards of its repair shops at Beech Grove, Indiana. These shops consisted of a number of buildings devoted to the repair of defendant's locomotives or engines and cars used on its road. In front of what is designated as the engine repair shop was a turntable, upon which the plaintiff was injured. This turntable was located in a circular pit with a track around the upper part of its outer edge. The table was on an iron frame, supported at each end by steel wheels which ran on the track referred to. On this table there was a standard-gauge railroad track upon which engines would be placed to be turned around to connect the turntable track with a track beyond the pit, and thus permit the engine to be run to a shop for repairs, or to some other point in the yards after being repaired, or out upon the main tracks of the defendant's right of way. The table was operated with a lever located at one of its ends, the lever projecting several feet above the surface. The motive power in the operation of the table was electric. Over the electric motor and the gears there was a wooden box or housing which extended a few inches above the table. Directly over the wheels of the table and attached to it was an iron pipe, the purpose of which was to pour sand on the track upon which the table moved.
For some time before the plaintiff's accident the boards on the turntable platform covering the gears of the machinery which turned the table had been missing. On the Saturday previous to plaintiff's injuries he reported this defect to defendant's foreman, whose business it was to make the repairs needed. The latter promised to make the repairs in a day or two. Plaintiff relied upon this promise and continued in his work. On the following Tuesday he had started the turntable for the purpose of sanding the tracks, which was his regular duty. These tracks were sanded by plaintiff at regular intervals, two or three times per week, in order that engines using the turntable would not slip on the rails. In sanding the tracks, he observed that the sand did not hit the rail and that the sand pipe was out of line. *Page 313 He reached for the lever to shut off the power with one hand, having his wrench in the other hand, and as he did so his foot slipped into the hole in the platform, and his leg was crushed in the gears in such a way that it had to be amputated. In his fall, his back was twisted and wrenched, causing the permanent injuries to the lower lumbar region of the spine.
When the plaintiff received his injuries he was employed with a fellow-workman, named Jones, on an engine of the defendant which the latter stated was used exclusively in the repair yards for switching purposes in getting engines and other equipment in and out of the yards. When engines arrived at the yards for repairs they were disconnected from their tenders and their use on the road as a motive power in moving trains was discontinued. When engines were transferred from any part of the road to Beech Grove for repairs they were brought there as dead freight, never under their own power. When the repairs had been completed they were connected with their tenders, run onto the turntable and headed out of the yards for use in the transporting of defendant's trains. The switch engine upon which the plaintiff and Jones were employed was confined in its operation to work within the repair yards. Corroborative of the testimony of Jones, the general shop inspector of the defendant testified that when engines were brought to the yards for repairs they were conveyed to that point as dead freight, i.e., they were not brought there under their own power, nor as instrumentalities in the operation of the road. Upon their arrival they were placed in storage yards and from there after they had been disconnected from their tenders they were taken by the switch engine to the repair shop. The witness then described in detail, not necessary to be repeated here, the manner in which engines were brought into and taken out of the yards for repairs, which was the sole reason of their being there and that while there they were out of service.
I. The plaintiff declares under the Federal Employers' Liability Act, approved April 22, 1908. [Chap. 149, 35 Stat. 65, U.S. Comp. Stat. Supp. 1909, p. 1322.] His right to recover, therefore, must be measured by the terms of that act.
The question to be determined is, was the plaintiff, at the time of his injury, employed in interstate commerce within the meaning of the Employers' Liability Act, or in work so closely related to that character of employment as to be practically a part of it. The language of the act (Secs. 1 andDisconnected 2), declaratory of the Common Carrier's Liability,Employment. is that the carrier shall be "liable in damages to any person suffering injury while he is employed by such carrier in such commerce." There is no dearth of cases construing this statute. The United States Supreme Court *Page 314 has, in a number of instances, discussed and defined the limitations of the portion of the act above quoted. In Shanks v. Delaware Lackawanna Railroad Co., 239 U.S. 556, 558, 60 Law Ed. 436, L.R.A. 1916-C, 797, the court held that the true test of employment in such commerce in the sense intended, is, was the employee at the time of the injury engaged in interstate transportation, or in a word, so closely related to it as to be practically a part of it? The court, in a further discussion of the act in the case cited held in effect that what Shanks' employment was on other occasions is immaterial for, as before indicated, the act refers to the service being rendered when the injury was suffered. That it refers not to the service being rendered in general by the employee, nor that being rendered on the day of the injury, but to the service being rendered at the very time of the injury.
In the case of Ill. Cent. Railroad v. Behrens, 233 U.S. 473, 58 Law Ed. 1051, Ann. Cas. 1914-C, 163, the court held that: "It is clear that Congress intended to confine its action to injuries occurring when the particular service in which the employee is engaged is a part of interstate commerce. . . . The true test always is: Is the work in question a part of interstate commerce in which the carrier is engaged?"
The case of Pederson v. Delaware, Lack. Western Railroad Co.,229 U.S. 146, 57 Law Ed. 1125, Ann. Cas. 1914-C, 153, states the correct conclusion as to the limitations of the statute, but bases the plaintiff's right of recovery upon a construction as to what constitutes the instrumentalities of interstate commerce, which instrumentalities, in the opinion of the writer, with due respect for the high court which rendered the decision, cannot properly be so classified. In short, the instrumentalities used by Pederson, at the time of his injury, had no such immediate connection with interstate commerce as is meant by the statute. Pederson and another employee under the direction of a foreman, were, when Pederson was injured, carrying some iron bolts from a tool car to be used the next day in repairing a bridge. From this fact it is reasoned in the majority opinion that as the bolts were to be used in the repairing of the bridge, and as the latter was an instrumentality of interstate commerce, the bolts became by reason of their destined use likewise such instrumentalities. A vigorous dissent to this conclusion by three of the members of the court properly recognized the limitations of the statute, and is in harmony with reason, measured by the average experience of men. However, if it be conceded that the facts in that case may be so construed as to sustain the verdict rendered therein, it cannot, when these facts are compared with those in the instant case, be held that the Pederson case is a precedent determinative of the case at bar. The facts are different. The nature of the plaintiff's employment in *Page 315 the instant case and the character of the work he was engaged in when injured, bore no relation, near or remote, to the defendant's activities as a carrier of interstate commerce. He was employed in a repair yard; his duties were principally those of a switchman on an engine used exclusively in moving engines and cars from one part of the yard to another which had been brought there for repairs. A part of the plaintiff's duty was the operation of a turntable on which he received his injuries. This turntable was used solely in turning about engines which had been brought there for repairs. Conceding that they had been used in interstate and intrastate commerce, it is shown that they were never brought to the yards under their own power, but as dead freight; and that the sole purpose of bringing them there was that they might be repaired. The lack of connection of the engines with plaintiff's injuries is so remote, therefore, as to render an explanatory statement of their use when under repairs irrelevant, except to emphasize such remoteness in determining the plaintiff's right of action under the statute.
II. We are left, therefore, to a consideration of the question whether the work being performed by the plaintiff on the turntable at the time he received the injuries was a part of interstate commerce or so immediately connectedDisconnected therewith as to be practically a part of it.Instrumentality. The use of the turntable was limited to the turning about of engines brought in for repairs. Brought in as dead freight they were necessarily placed upon the turntable by the switch engine kept there for that purpose, and, so far as the record discloses, for that alone. There was no engine on the turntable at the time of the accident, and plaintiff's injuries were caused by his starting the electric motor and inadvertently stepping into the gears or machinery connected with the movement of the table. The use of the latter, limited as stated, cannot within the letter and spirit of the act (both of which we may consider in determining its purpose), be held to authorize this action. That the turntable was an instrumentality operated by the defendant it may be admitted. While railroads are generally engaged in interstate commerce it is not every instrumentality employed by them that may be said to be connected with such commerce within the meaning of the law. The turntable not being used as an instrumentality of interstate commerce the plaintiff while operating the same cannot be said to be so connected with such commerce as to entitle him to sue and recover under the Federal Act. Especially is this true where in the entire scope of the plaintiff's employment by the defendant there is no fact showing his connection with the defendant's activities in interstate commerce, such as is contemplated by the statute. A review of many cases, if cursorily considered, leads to the *Page 316 conclusion that the rulings therein on the question of the application of the act, especially in the Federal courts, is in inextricable confusion. A careful consideration of those cases, however, will demonstrate that, unless the facts have been misinterpreted, the final test is, whether the injury complained of was within the terms of the act or so connected therewith as to become a part of the interstate activity of the defendant. Cases illustrative of the non-application of the act are as follows:
Employees engaged in constructing a semaphore and depot to be erected in the place of others, and to be used in interstate as well as intrastate commerce, do not come within the Federal Employers' Liability Act, as defined in Sections 8657-8665, U.S. Comp. Stat. [Williams v. Schaff, 282 Mo. 497, 222 S.W. 412.]
In Fenstermacher v. C.R.I. P. Ry. Co., 309 Mo. 475,274 S.W. 718, it is held, after a discriminating review of many cases, that an employee of a carrier engaged in interstate commerce, who was injured while loading telegraph poles on cars whence they were to be taken to repair a telegraph line used by the railroad in the transaction of business, was not engaged in interstate commerce within the meaning of the act at the time of his injury.
A carpenter injured while repairing a stove pipe to be used in a round house where engines employed in interstate commerce were sheltered, was not employed in interstate commerce. [Dunn v. Mo. Pac. Ry. Co., 190 S.W. (Mo.) 966.]
An employee of an interstate road when injured in the discharge of his duties does not come within the purview of the act, unless the work he is performing at the time is so connected with interstate traffic as to necessarily become a part of it. [Manes v. St. L. S.F. Ry. Co., 205 Mo. App. 300.]
In Brock v. C.R.I. P. Ry. Co., 305 Mo. 502, 266 S.W. 691, the court declares generally that an employee, to bring his right of action within the terms of the Employers' Liability Act, must, at the time of his injury, be engaged in work interstate in character or so nearly related thereto as to practically be a part of it, as in repairing an instrumentality then in use in interstate transportation.
In the case of Industrial Accident Commission v. Davis,259 U.S. 182, it was held that where an engine employed exclusively in interstate commerce was sent to the shops for repair and a workman was injured while engaged in such repairs, he could not recover under the Interstate Commerce Act, although when repaired the engine was to be returned to interstate service. This case cites with approval the Shanks case, supra, and C.B. Q. Ry. v. Harrington, 241 U.S. 177.
In Buck v. C.M. St. P. Ry. Co., 153 Wis. 158, the court held that, as regards appliances and instrumentalities used by a common carrier *Page 317 in the business of transportation, it is the use to which it is put at the time, rather than the nature of the instrumentality, which determines whether it is employed in interstate commerce. This was a case in which an employee was injured while repairing a boiler used on a wrecking train which was operated at times in other states, and it was held that thus occupied the employee was not engaged in interstate commerce.
In Herzog v. Hines, 95 N.J.L. 98, 112 A. 315, it was held that an employer who was injured while repairing a car temporarily withdrawn from service, but which had been indiscriminately used in intrastate and interstate service, was not engaged in interstate commerce.
In C. A. Ry. Co. v. Allen, 249 F. 280, it was held that a shopman injured while engaged in the general overhauling and repairing of an engine that had been used both in intrastate and interstate commerce and was intended to be thereafter so used when repaired, was not necessarily engaged in interstate commerce.
III. If precedents, as nearly parallel in their facts as the multifarious occurrences of every day life will permit, may be held to obtain, the conclusion is authorized that under all of the circumstances in the case at bar the plaintiff was not engaged in interstate commerce at the time of hisRemote injury, or so nearly connected therewith as to bringConnection. him within the terms of the Employers' Liability Act. The connection of the turntable with the interstate activity of the defendant in this case was, in our opinion, too remote to bring the plaintiff within the purview of the act. There are of course conditions under which a turntable could be held to sustain such a close relation to interstate transportation as to bring one receiving injury while operating the same, within the terms of the act. Semble: if the employee was, at the time of the injury, operating or repairing a turntable on which engines hauling interstate trains or trains carrying interstate and intrastate freight were turned, upon entering or leaving a round house before and after trips, the status of the injured employee might properly be held to be within the terms of the act. [1 Robert's Federal Liabilities Carriers, sec. 475, p. 824.] No such conditions exist here. The character of the plaintiff's employment was well defined. It was local and limited to the repair yards and his sole relation to the carrier's business was that he was in its employment and it was engaged in interstate business with which he had no connection. If the turntable he was attempting to operate had been operated to turn engines used in interstate and intrastate transportation a basis would, as suggested, exist for plaintiff's right of action under the statute, but where engines are withdrawn from service and are in the yards for *Page 318 repair the right does not exist. [Minn. St. Louis Ry. Co. v. Winters, 242 U.S. 353; Heimbach v. Lehigh Valley Ry. Co., 197 F. 579; C.R.I. P. Ry. Co. v. Cronin, 176 Pac. (Okla.) 919; Cent. Ry. Co. of New Jersey v. Paslick, 239 F. 713; Payne v. Demott, 26 Ga. App. 314, 106 S.E. 9; New Orleans N.E. Ry. Co. v. Beard, 128 Miss. 172, 90 So. 727.]
In view of all of which the holding is authorized that the use of the turntable was too remote from the interstate character of the road to bring the plaintiff within the terms of the act, and the judgment of the trial court should be reversed and remanded that such action may be taken therein as is warranted by the law and the facts.