I dissent. The plaintiff was employed by the defendant in a repair shop devoted principally to the repair of locomotives transporting passenger and freight trains between Hoboken, N.J., and Scranton, Pa. The defendant had only two shops devoted to this purpose. One was the shop in Hoboken where the plaintiff *Page 421 was employed, and the other was at Scranton. The "rush work" which plaintiff was employed to do consisted in repairing broken valves or other necessary parts of locomotives engaged in interstate commerce, although sometimes locomotives engaged in intrastate commerce were sent for repair to the shop where plaintiff worked. In the shop where plaintiff worked there was an electric crane used for transporting parts of locomotives from one part of the shop to the other. The crane operated on wheels which ran on rails or girders about thirty feet above the floor. The rails or girders were parallel and ran the whole length of the shop. The crane was operated by a man who sat in the center of it and it is said to have moved "the same as a trolley." When the crane reached its destination the operator lowered his "block and fall" and picked up whatever was required and the crane carried it to another part of the shop. It was not equipped with any signal. The only method by which workmen were warned that the crane was in motion was for the operator to shout, "Keep clear there" or "Get out of the way."
In the shop where the plaintiff worked there was a shaping machine. The function of this machine was to fashion keys, cotter pins and brasses to be used for keeping in place the piston rods in the crossheads of locomotives. The machine was driven by a countershaft which was affixed to the girder or rail upon which the wheels of the electric crane traveled. On the day of the accident the plaintiff was engaged, under the direction of the superintendent, in repairing the shaping machine, by moving it two feet to make room for the shaft. In removing it, it was necessary to take down the countershaft, to bore new holes in the girder and to refasten the hangers and countershaft so that the shaping machine could be used without interruption from the operation of the crane. While engaged in this work plaintiff stepped on the girder. Without warning the crane came upon *Page 422 him and knocked him off the girder. In falling he threw out his left hand and caught hold of the rail. The crane cut this hand off and to keep from falling plaintiff again caught the rail with his other hand. This hand was also struck by the crane. The result of the accident to the plaintiff was that he lost both hands. The defendant offered no evidence. This action is brought under the Federal Employers' Liability Act of April 22, 1908 (35 Stat. at L. 65, chap. 149; U.S. Comp. Stat. Supp. 1911, p. 1322). The act provides:
"That every common carrier by railroad engaged in interstate commerce shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, roadbed or other equipment."
The verdict of the jury established that the injuries which the plaintiff sustained were due to the negligence of the defendant. The learned Appellate Division reversed the judgment entered upon the verdict of the jury in favor of the plaintiff on the ground that the plaintiff was not at the time of the accident engaged in interstate commerce. In the opinion below two suggestions are made which seem to me to have no importance in this case. One relates to the fact that at the time of the accident the plaintiff was engaged in Sunday work, from which the inference is suggested that this was not the regular work of the plaintiff. The fact shown by the evidence is, that repair work in this shop was done on Sundays as well as on other days and the fact that the plaintiff was engaged in Sunday work injects no exceptional feature into the case. The other suggestion, made below, is that the shop in which plaintiff worked was also used as the repair shop of a railroad which had extensive local service in which the locomotives were used only in intrastate commerce. *Page 423 It appears from the testimony that the "rush work" upon which plaintiff was engaged was generally done upon locomotives used in interstate commerce and that this was the principal work of that shop. Upon the trial it was conceded that the defendant at the time of the accident was engaged in interstate commerce. The claim is made that the plaintiff was not at the time of the accident engaged in interstate commerce. If the plaintiff had been engaged at the time of the accident in working upon a locomotive engaged in interstate commerce, it is conceded that he would be within the Federal statute. Is he without the protection of this statute because he was working to put in order a machine that was to be used in repairing locomotives engaged in interstate commerce? In my opinion he was not. The work of repairing the shaping machine was not independent of interstate commerce. It was essential to the carrying on of that commerce. The work of putting that machine in order so that it could be used in the repair of locomotives engaged in interstate commerce, was just as much an act of interstate commerce as if the work had been done upon such a locomotive. The work in which the plaintiff was engaged was, as the United States Supreme Court said in thePedersen Case (229 U.S. 146), "so closely related to such commerce as to be in practice and in legal contemplation a part of it." In that case it was held that a plaintiff who was acting under the direction of his foreman and injured while carrying bolts from a tool car to a bridge which was used in interstate commerce, was engaged in interstate commerce. In his opinion, rendered in that case, Mr. Justice VAN DEVANTER said: "The point is made that the plaintiff was not at the time of his injury engaged in removing the old girder and inserting the new one, but was merely carrying to the place where that work was to be done some of the materials to be used therein. We think there is no merit in this. It was necessary to the repair of the bridge that the materials be at hand, and *Page 424 the act of taking them there was a part of that work. In other words, it was a minor task which was essentially a part of the larger one, as is the case when an engineer takes his engine from the round house to the track on which are the cars he is to haul in interstate commerce." (p. 152.)
This is a case where the plaintiff was injured while engaged in the performance of an act necessary to maintaining in proper condition the shaping machine which was as much an instrumentality of interstate commerce as are bolts used in the repair of a bridge. Without this machine the locomotives engaged in interstate commerce could not have been repaired and put in a condition to be used in such commerce. It may have been minor work, but it was none the less an essential part of the larger work of putting in repair locomotives engaged in interstate commerce. The Pedersen Case (supra) seems to me to sustain the contention of the plaintiff that at the time of the accident he was engaged in interstate commerce. Since that case was decided it has been held that a boilermaker's helper employed in the shop of a railroad company, injured while assisting in the repair of an engine used in interstate commerce, is within the statute. (Law v. Illinois Central R. Co., 208 Fed. Rep. 869.) In the recent case of Barlow v. Lehigh Valley Railroad Co. (214 N.Y. 116, 119) it was said by Judge MILLER, speaking for this court: "If the plaintiff had actually been coaling an engine preparatory to its moving interstate cars, he would plainly have been engaged in interstate commerce. * * * The placing of the coal cars on the trestle was one step removed from such work, but it was certainly no more remote than the carrying of bolts to repair a bridge, which was held to be so closely connected with interstate commerce as to be a part of it."
In the Pedersen Case (supra) the court said: "The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged." It is *Page 425 clear that the construction of tracks, bridges, engines or cars or shops to be used for the repair of such cars is not an act done in interstate commerce, because until constructed these things "have not as yet become instrumentalities in such commerce." But after these things have been constructed and have been used as instrumentalities of such commerce, the work of maintaining them in proper condition is work done in interstate commerce. Such is, as I understand it, the rule which the United States Supreme Court has applied in its construction of the Federal Employers' Liability Act and I think that we should apply it to this case. The test prescribed in the Pedersen Case (supra) has the merit of definiteness. It draws a line of distinction between construction and the work of maintaining in proper repair. Until the track or bridge or car, shop or whatever it is, actually becomes an instrumentality of interstate commerce the provisions of the Federal statute have no application. After construction, and after it has been placed in use and has taken on the character of an instrumentality of interstate commerce, any act done in maintaining it is within the Federal statute. One of the chief merits of the construction put upon the statute by the United States Supreme Court is the clearness with which it defines the line of demarcation between what is and what is not within the statute, and thus provides a definite test by which the person injured may determine whether his remedy is under the Federal statute or under the state law. The fact that the shaping machine upon which the plaintiff was working was used to repair locomotives engaged in intrastate commerce, as well as locomotives engaged in interstate commerce, did not cause it to cease to be an instrumentality of interstate commerce. In thePedersen case it was said: "True, a track or bridge may be used on both interstate and intrastate commerce, but when it is so used it is none the less an instrumentality of the former." *Page 426
In my opinion this case is within the provisions of the Federal statute as that statute has been construed by the United States Supreme Court. I, therefore, vote in favor of the reversal of the judgment of the Appellate Division which reversed the judgment entered upon the verdict of the jury in favor of the plaintiff.
WILLARD BARTLETT, Ch. J., HISCOCK, CUDDEBACK and MILLER, JJ., concur with CHASE, J.; SEABURY, J., reads dissenting opinion, and CARDOZO, J., concurs.
Judgment affirmed.