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EMPLOYERS' LIABILITY-RAILROAD COMPANIES-STREET RAILWAYS-CONSTRUCTION OF STATUTE-Conover v. Public Service Railway, Supreme Court of New Jersey, 78 Atlantic Reporter, page 187.This was an action brought by James W. Conover against the railway company named to recover damages for injury received by him while in the employment of the corporation named in the operation of a street railway. The declaration was demurred to by the company on the ground that the statute in question (paragraph 3 of section 1 of chapter 83 of the laws of New Jersey of 1909) related to steam railways and not to street railways. This view was taken by the supreme court of the State, which held that the statute creating liability for the injury or death of a person occasioned “by reason of the negligence of any person in the service of the employer who has the charge or control of any signal, switch, locomotive engine or train upon a railroad,” could not under the construction placed upon other legislation of the State be held to apply to street railways. The concluding paragraph of the opinion, which was delivered by Judge Minturn, is as follows:

We can give to the words “locomotive engine" or "train upon a railway,” as employed in this act, the construction contended for by the demurrant, so as to apply it to street railways, only by indulging in a liberality of construction and interpretation radically divergent from the accepted use of the words in popular and colloquial phrase and totally opposed, as has been seen, to the hitherto legislative and judicial acceptation of the terms. The collocation of these terms,

signal, switch, locomotive engine or train upon a railroad” affords some aid in enabling us to determine the legislative intent by according to them, as we must under the familiar canons of construction, their ordinary and common meaning in the absence of a legislative intent to the contrary, and a similar result is reached by the application of the maxim of construction, “Noscitur a sociis." (Black. Int. Laws, 135; Bacon's Ab. 4, p. 26; Bishop v. Elliott, 11 Exch. 113.) The plain inference from this collocation is that the legislature in enacting the legislation in question had in mind that public policy of differentiation between two distinct systems of railroads which has consistently marked the legislation upon the subject and which has been repeatedly recognized by judicial determination as the declared public policy of the State.

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EMPLOYERS' LIABILITY-RAILROADS-FEDERAL STATUTE-JURISDICTION OF STATE AND FEDERAL COURTS--INTERSTATE COMMERCE CONSTRUCTION OF STATUTE-Colasurdov. Central Railroad of New Jersey, United States Circuit Court, Southern District of New York, 180 Federal Reporter, page 832.—Michael Colasurdo was a trackwalker,

a assisting in the repair of a switch on the above-named railroad on the evening of December 25, 1908, and while so engaged was injured by being struck by one of the four cars that were running down the track without a locomotive. There were three men at the switch, each with a lantern, and Colasurdo had his back to the cars by which he was injured. It was in evidence that the cars carried no light, and while there was a man on the cars who saw the lights of the three workmen, he testified that he thought their attention had been attracted to the cars and that they would move in time to escape injury.

Suit was brought by Colasurdo in a State court, but was removed by the defendant company to a Federal court on grounds of diversity of citizenship of the plaintiff and the employing company. During the trial it was shown that both parties were citizens of New Jersey, whereupon the company sought to have the case remanded to a State court for failure of jurisdiction of the Federal court. Inasmuch as the action was brought under the Federal statute of April 22, 1908 (35 Stat. 65), the court retained the case as involving the construction of a Federal statute, and judgment was given for the plaintiff. The present case was the hearing of a motion for a new trial, which was refused, and judgment was directed on the verdict.

The various points were taken up in order by Judge Hand, speaking for the court, who delivered his opinion July 1, 1910. Having stated the facts as above, Judge Hand said:

The question is squarely raised in this case of the jurisdiction of this court. In so far as it depends upon diverse citizenship, the case must be remanded under act March 3, 1875, c. 137, 18 Stat. 470 (U. S. Comp. St. 1901, p. 507). If, however, the dispute or controversy is one arising under a law of the United States, then this court has jurisdiction, and it makes no difference that the defendant could not have been originally sued in such a controversy outside of its domicile. Such a dispute or controversy is within its jurisdiction if the correct construction of the law, which is laid in the complaint as the basis of the right of action, is necessarily involved in the decision, and it is quite clear in this case that it is necessary to determine the meaning of the phrase "person employed by such carrier in such commerce.' Therefore this court has jurisdiction, even though the complaint should be dismissed because the plaintiff was not a person so employed. In short, a decision of the meaning of that act is necessary, and such a necessity gives me jurisdiction, regardless of the result of the case.

Coming then to the merits, I will take up the points raised by the defendant seriatim. First, upon the motion to direct a verdict, I think that the refusal was proper. From the evidence the jury could have found that the plaintiff, who was under the orders of Nighland, and had been standing facing east so that the train came upon him from the rear, while Nighland himself was at work facing either south or west, and the other trackwalker stood apparently between the two. If this was the relative position of the three men, the jury could have found that the plaintiff was relying upon the other trackwalker or Nighland to look west and to observe the trains. If both failed to warn plaintiff of the train coming from that direction, the accident was due to their negligence in a duty reasonably imposed upon them, and, though they were fellow servants, yet under this statute their negligence was that of the master. The fellow-servant rule has been so much ingrained in both bench and bar that this point was not made on the trial; but it was directly in the evidence and justified a refusal to dismiss for lack of the defendant's negligence.

Besides, there was also evidence in the case that the rear of the train was not lighted, that no warning was given of the train's approach, and that the man at the rear, although he saw the lights, waited too long before trying to check the train. Since the accident happened at night, and the train was running swiftly and without any ready means of control, I think the case is clearly differentiated from Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Čt. 835, 36 L. Ed. 758, and I certainly do not think that as matter of law there was no negligence in operating in a freight yard four cars under their own impetus, after dark, without warning and without light. None of the cases cited by the defendant have a set of facts similar to this. Upon these two grounds therefore, and without considering the question of the necessity of stationing a man to watch the three, I am satisfied that there was evidence of the defendant's negligence.

The only important exception which remains is to that part of the charge which permitted the jury to find the defendant negligent in not stationing some one to watch the gang of men while at work. It was possible under the charge for the jury to find that, although there were lights upon the train, and that the trainman acted reasonably in not trying to stop the train before he did, yet the defendant was negligent in not giving standing instructions in such cases for some employee to watch for trains.

Such a person might have to engage in the work from time to time; but it is at least a fair question of fact whether some one should not all the time watch for the approach of trains. Had I myself sat upon such a jury, I should have thought that it was a reasonable necessity for the safety of the men, regardless of the practice of other roads, and that a railroad should have a rule instructing its employees always to maintain a watch, while at work in the dark. It seems quite clear that, unless this is done, the attention of all will of necessity at times become directed upon the work rather than upon the danger.

The remaining question is of the application of the act of 1908, and that turns on whether the plaintiff was employed in interstate commerce. The act in question was passed after the decision of the Supreme Court in the Employers' Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297, in which a similar act was declared unconstitutional by a divided court, because it applied generally to all carriers engaged in interstate commerce. Some questions, however, were decided by the whole court in those cases, and one of these was that the act was not unconstitutional because it regulated the relation of master and servant; all the justices recognizing that Congress might regulate those relations while the master and servant were employed in interstate commerce. The present act was clearly passed to meet the objection of that decision, and I think it should therefore be construed as intending to include within the term “person employed in such commerce" all those persons who could be so included within the constitutional power of Congress; that is to say, the act meant to include everybody whom Congress could include. Under this construction the inquiry becomes whether Congress could constitutionally have passed a statute regulating the relation between a carrier-master and å servant who was engaged in the repair of a track used both for interstate and intrastate commerce. Preliminarily the distinction should be noted that the act will not necessarily apply to the same person in all details of his employment. One man might have duties including both interstate and intrastate commerce, and he would be subject to the act while engaged in one and not the other. This being so, the question is whether his repairing of a switch is such employment, when the switch is used indifferently in both kinds of commerce. Suppose the track had crossed a corner of a State, and there was only one station within that State so that all trains crossing over that track must necessarily be engaged in interstate commerce. Would not a track worker engaged in the repair of such a track be engaged in interstate commerce? I do not think that he would be any the less so engaged than the engineer on the locomotive or the train dispatcher who kept the trains at proper intervals for safety. Of course, it is not necessary that the man must personally cross a State line. If the repair of such a track be interstate commerce, does it cease to be such because there are two stations within the State and some of the trains start at one and stop at the other? I can not think that this is true, although counsel have referred me to no case upon the subject and I have found none. The track is none the less used for interstate commerce, because it is also used for intrastate commerce, and the person who repairs it is, I think, employed in each kind of commerce at the same time.

Despite the earlier ruling in Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23, it has in recent times been stated several times by the Supreme Court that State statutes may indirectly regulate interstate commerce, even though Congress may at any time itself under its proper constitutional powers, enact a provision of directly opposite tenor. (Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819; Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108.) If, as was held in those cases, a State has the power to regulate such commerce until Congress intervenes, because it is as well within the State's proper powers, must not the corollary be true as well, that Congress may intervene, even when the effect of that intervention be incidentally the regulation of intrastate commerce as well ? Could not Congress, for example, provide that all tracks used in interstate commerce must be of a standard width and weight ? Would that not affect all tracks used in such commerce, although they likewise were used for intrastate commerce? Of course, anyone could use any other tracks he chose for intrastate commerce; but it can surely not be a ground to limit Congress's proper powers that the track has a joint use. If so, the repair of such tracks must be a part of interstate commerce, and under the Employers' Liability Cases, supra, the relations of master and servant arising between the railroad and its employees engaged in repairing the track are similarly within the power of Congress.

I am therefore of opinion that the plaintiff was at the time engaged in interstate commerce and entitled to the rights secured by this act. That being so, it is a matter of no consequence whether the train that struck him was engaged in that commerce or not. It is true that the act is applicable to carriers only “while engaged” in interstate commerce, but that includes their activity when they are engaging in such commerce by their own employees. In short, if the employee was engaged in such commerce, so was the road, for the road was the master, and the servant's act its act. The statute does not say that the injury must arise from an act itself done in interstate commerce, nor can I see any reason for such an implied construction.

I will therefore deny the new trial and direct judgment on the verdict. The defendant, if it wishes, may have a certificate on the jurisdictional point direct to the Supreme Court, though that opens only a limited review.

HOURS OF LABOR OF EMPLOYEES ON RAILROADS_FEDERAL STATUTE-TIME ON DUTY— United States v. Illinois Central Railroad Company, United States District Court for the Northern District of lowa, 180 Federal Reporter, page 630.—The United States brought an action against the company named for a violation of the law of March 4, 1907 (34 Stat. 1415), which limits the hours of labor of certain employees on railroads to 16 in any 24-hour period. The particular point involved was the rule of the company requiring men to report 30 minutes before the time for their trains to leave, which time the company contended should not be counted as a part of the duty period. This view was rejected by the court, as appears from the following quotation from the opinion, which was delivered by Judge Morris:

The question here is as to the effect of the rule of the company requiring, men to report 30 minutes before the leaving time of the train to do the things required by the rule, coupled with the fact that this man did comply with that rule.

I do not think the custom of the company not to strictly enforce the rule makes any difference. This man complied with the rule. He arrived at the engine 30 minutes before the leaving time of the train, and was actually engaged in doing the things required by the rule; and the question here is whether he was during that time, within the meaning of the act, actually engaged in or connected with the moving of that train. That is the question here. In my opinion this man was on duty, within the meaning of the act, from the time he went there and commenced to supervise, or overlook, that engine in preparation for the trip. It does not make any difference whether he was paid for this time or not. That was the time his work and the strain on him began. The work of an engineer, an employee of the railroad, begins when under the rule of the company he is there and is at work in connection with the preparation of the engine for the moving of the train. He must look over that engine. He must see that it is oiled up. He must see that the air brakes are all right. He must move the engine down over the tracks and across the switches to connect it with the train. And in my opinion he is on duty, within the meaning of the act, during the time he is doing these things. If he goes there a half an hour before the time to start to do these things, during the time he is there doing them he is on duty. That is my view of it.

85048°-Bull. 92-11-19

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