Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; John P. Barnes, Judge.
Before SPARKS, MAJOR, and TREANOR, Circuit Judges.
This is an appeal from a judgment in favor of the plaintiff in an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 e seq., to recover damages for personal injuries occasioned by the alleged negligence of a section foreman of defendant's railroad.
The complaint alleged that on March 11, 1937, the defendant operated railroad lines through Hancock County, Ohio, and between there and the Northern District of Illinois, and transported freight and passengers through said District in both intrastate and interstate commerce, and was doing business within the meaning of Section 6 of the Federal Employers' Liability Act. It was further alleged that the plaintiff, on the aforesaid day, was at work for the defendant as a section hand and had been engaged in repairing and maintaining certain railroad tracks of the defendant which were used in transportation of trains in interstate commerce and transportation, and at the order of his foreman, was operating a speeder upon defendant's tacks; that a speeder operated by the foreman, and following the one operated by plainiff, negligently collided with the latter, throwing the plainiff therefrom and causing the injuries complained of.
Defendant, in its answer, admitted that it transported freight and passengers in intrastate and interstate commerce as alleged in plaintiff's complaint, but denied that at the time of the said accident and injuries to the plainiff, that plaintiff was engaged in work in interstate transportation, and also denied the varius acts of negligence set forth in the complaint.
Part II of the defendant's answer alleged that the plaintiff, at the time olf the alleged accident, was a resident of the County of Hancock and State of Ohio, and that the defendant was amenable to service of process at various places in that State, including Hancock and Lucas Counties; that a suit was instituted in the United States District Court at Toledo, Lucas County, to recover damages on account of said accident and injuries on November 24, 1937, which suit was dismissed on plaintiff's motion May 4, 1938. It was alleged that on May 7, 1938, the same cause of action was instituted by the plaintiff in the Superior Court of Cook County, Illinois, and that the defendant appeared and answered; also, that the defendant, on July 27, 1938, instituted a suit in State Court of Hancock County against the plaintiff, in which a temporary injunction order was entered enjoining the plaintiff from maintaining or prosecuting said suit in the Superior Court of Cook County, and, that thereupon, the plaintiff, on September 168 1938, dismissed the Cook County suit. It was also alleged that on the same day of the latter dismissal, the plaintiff instiuted the instant suit, being the same cause of action as that commenced in the United States District Court of Ohio, and the Superior Court of Cook County. It was further alleged that on September 29, 1938, the defendant filed a supplemental petition in the Ohio Court upon which a temporary restraining order was issued enjoining the plaintiff from maintaining or proscuting the instnat suit. In a supplemental answer, the defendant set forth that this temporary order of the Ohio State Court was made perpetual on January 25, 1939.
The District Court granted plaintiff's motion to strike Part II of defendant's answer, as well as its supplemental ansewr.
The principal errors relied upon for reversal are: (1) The trial court erred in its refusal to direct a verdict in favor of the defendant. Under this point it is argued that the plainiff, at the time of the accident, was in no way engaged in or connected with interstate transportation and, that there was no evidence of negligence in the operation of the speeder by defendant's foreman. (2) The court erred in granting plaintiff's motion to strike Part II of defendant's answer and defendant's supplemental answer. (3) The court erred in not dismissing plaintiff's action in conformity with Rule 41 of the Federal Rules of Civil Proceduer, 28 U.S.C.A. following section 723c.
So far as here material, the evidence discloses that plaintiff was a section man whose general duties were to clean up the right-of-way and to maintain the track. On the day in question, he cleaned snow out of he switches pursuant to specific instuctions, and tightened some bolts. When this work was done, plaintiff drove a speeder to Chase Crossing, arriving around 8:30 A.M., whre, following orders given him the day before, he cut brush and cleaned the right-of-way - the same character of work performed the previous day. Shortly afterwards, he was joined in this work by one Beckman, the section foreman, and one Cope, another section man. They all continued this work until about 10 A.M., when they decided to go to Findlay, a distance of three and one-half miles. The purpose in making this trip was to obtain their pay checks, which was customary, and also to obtain tools to be used in their brush cutting work.
Plaintiff started to Findlay on the speeder and Beckman and Cope followed on another. When approaching Buckeye Crossing, about two miles from the Chase Crossing, plaintiff observed an automobile approaching the railroad-highway intersection. He held out his hand as a signal to Beckman that his speed was being reduced and Beckman acknowledged the signal. When there was no further danger from collision with the automobile, plaintiff turned on the gas and picked up speed. At the time he passed the highway crossing, Beckman was about one hundred fifty feet behind. From then on, plaintiff continued to look forward until at a point about two hundred feet beyond the highway crossing, where the speder driven by him was overtaken and crashed into by the one driven by Beckman. Beckman's version is to the effect that they both slowed down for the crossing; that he increased his speed at the crossing, but failed to again slow down in time to avoid colliding with plaintiff's speeder.
Defendant argues that plaintiff, at the time of his injury, was not engaged in interstate transportation, or in work so closely related thereto as to be practically a part thereof. In considering this question, we think it must be viewed from the standpoint of the nature and character of work in which plaintiff was engaged upon the morning of the accident.*fn1 True, at the precise moment of the accident, plaintiff was not engaged in actual work common to a section hand, yet he was upon a mission, under the direction of the section foreman, the purpose of which was, in part, the obtaining of tools to be usded shortly in a continuaitn of his regular work.
A more serious question, however, is whether plaintiff, as a section man, in cuting brush on the right-of-way, was engaged in interstate transportation, or in work so closely related to such transportation as to be practically a part of it. Defendant states its position thus: "* * * In such work, which is static in character, the requisite of motion or action in interstate transportaiton is lacking entirely. Such work does not directly or intimately concern interstate transportation as such in essential meaning."
It is not difficult to find authorities which apparently sustain both sides of the controversy. The case relied upon most strongly by plaintiff is that of Pedresen v. Delaware, Lackawanna & Western R. Co., 229 U.S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas.1914C, 153, decided May 26, 1913. In that case the employee was injured while carrying some bolts which were to be used by a repair crew to repair a bridge. The court held the employee to be within the Act, and in 229 U.S. on page 151, 33 S. Ct. on page 649, 57 L. Ed. 1125, Ann.Cas.1914C, 153, said: " * * * Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars; and sound economic reasons unite with settled rules of ...