The opinion of the majority discloses that the case of Illinois Central R. R. v. Behrens, 233 U.S. 473, 34 S. Ct. 646,58 L. Ed. 1051, Ann. Cas. 1914C, 163, is considered as controlling here. Upon a reconsideration of the cause, I am persuaded the court has fallen into error in so holding, and am unable to agree. The cases are to my mind readily distinguishable. In the Behrens Case the true test was held to be "the nature of the work being done at the time of the injury," and the court merely concluded that, as at that time the intestate was engaged wholly in intrastate commerce, the case was without the federal statute, and the fact that, upon completion of the intrastate commerce work, he was expected to *Page 149 engage in other work partaking of interstate character, was immaterial.
The distinction between the Behrens Case and that here under consideration is illustrated by Louisvile Nashville R. Co. v. Parker, 242 U.S. 13, 37 S. Ct. 4, 61 L. Ed. 119, from which we take the following quotation:
"The business upon which the deceased was engaged at the moment was transferring an empty car from one switch track to another. This car was not moving in interstate commerce, and that fact was treated as conclusive by the Court of Appeals. In this the court was in error, for if, as there was strong evidence to show, and as the court seemed to assume, this movement was simply for the purpose of reaching and moving an interstate car, the purpose would control and the business would be interstate. The difference is marked between a mere expectation that the act done would be followed by other work of a different character, as in Illinois Central R. R. Co. v. Behrens, 233 U.S. 473, 478, and doing the act for the purpose of furthering the later work."
Here plaintiff, as foreman of the switching crew, had been engaged in switching cars then moving in interstate as well as intrastate commerce. Trouble arose with the engine. At that time two of the main lines were blocked with cars, but before taking the engine to the roundhouse one line [the east main line] was cleared, leaving the west main line of the Seaboard Railroad, an interstate road, blocked. After the expiration of an hour, the engine was repaired at the roundhouse, and plaintiff "started back to the train on the main line," to use plaintiff's expression, and it was on this return trip the injury occurred. In the line of cars left on this west main line were certain cars of grain moving in interstate commerce, and for delivery at Birmingham. As we read and understand plaintiff's evidence [on page 25 of the record], it is to the effect that, among the line of cars left on the main line, and that he "had started back to," were certain grain cars, admittedly, as I understand it, moving in interstate commerce, and which he designates by their numbers, and that he had instructions from his superior at that time to deliver and place those cars that he had started back to move. In any event, plaintiff was at the time of the injury enroute to the train of cars containing interstate as well, also, as intrastate cars, and which blocked the main line of an interstate road. If for the movement and delivery of these interstate cars the movement of the intrastate cars was necessary, it would seem the Parker Case, supra, suffices as an answer that the work engaged in was of interstate character. The fact that the engine had not reached and coupled to the cars is immaterial, as held in New York Central H. R. R. Co. v. Carr, 238 U.S. 260, 35 S. Ct. 780, 59 L. Ed. 1298, the court saying:
"If he is hurt in the course of his employment while going to a car to perform an interstate duty, or if he is injured while preparing an engine for an interstate trip, he is entitled to the benefits of the federal act, although the accident occurred prior to the actual coupling of the engine to the interstate cars."
See, also, N.C. R. R. Co. v. Zachary, 232 U.S. 248,34 S. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159.
In the Behrens Case there was a mere expectation of an engagement in interstate commerce upon completion of an act which was then wholly intrastate. Here the question of expectation is not involved. The engine was moving enroute to the line of cars containing, among others, interstate cars for delivery, and, as said in the Parker Case:
"The difference is marked between a mere expectation that the act done would be followed by other work of a different character * * * and doing the act for the purpose of furthering the later work."
The very situation, as I view it, as here presented, was used by way of illustration in Pedersen v. D., L. W. R. R.,229 U.S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, where the court uses the following language:
"It was a minor task which was essentially a part of the larger one, as is the case when an engineer takes hisengine from the roundhouse to the track on which are the carshe is to haul in interstate commerce." (Italics supplied.)
But these considerations aside, I see no escape from the conclusion of the interstate character of the work at the time of the injury, when it is considered that the line of cars which plaintiff had started back to move were blocking a main line of an interstate road. This situation had, of course, to be remedied before interstate commerce on that line may be resumed.
In Southern R. Co. v. Puckett, 244 U.S. 571, 37 S. Ct. 703,61 L. Ed. 1321, Ann. Cas. 1918B, 69, the track was blocked by a wrecked car, and plaintiff was injured while on his way to render assistance in replacing this wrecked car. The court held that the replacement of this wrecked car entered inseparably into the object of clearing the track, and gave to the operation the character of interstate commerce, and uses in concluding this holding the expression:
"That preparatory movements in aid of interstate transportation are a part of such commerce within the meaning of the act."
Certainly, this engine on its way to move these cars and thereby clear this track was engaged in a preparatory movement in aid of interstate transportation. See, also, Seaboard Air Line Ry. v. Koennecke, 239 U.S. 353, 36 S. Ct. 126,60 L. Ed. 324.
It is not insisted that weight is to be here *Page 150 attached to the fact that defendant is a local road. Illinois Central R. Co. v. De Fuentes, 236 U.S. 157, 35 S. Ct. 275,59 L. Ed. 517; U.S. v. Union Stock Yards, 226 U.S. 286,33 S. Ct. 83, 57 L. Ed. 226.
In M. St. L. R. Co. v. Winters, 242 U.S. 353, 37 S. Ct. 170,61 L. Ed. 358, Ann. Cas. 1918B, 54, cited in the majority opinion, speaking of the engine there in question, the court said:
"It was not interrupted in an interstate haul to be repaired and go on. It simply had finished some interstate business, and had not yet begun upon any other."
This brief quotation should be sufficient to demonstrate that the instant case can find no support in that authority. Each case must be determined in the light of its particular facts, and I am persuaded that, viewed from either phase of the case, the majority opinion is erroneous.
I therefore respectfully dissent.
THOMAS and BOULDIN, JJ., concur in the foregoing views.