Baltimore & Ohio Railroad v. Rodeheaver

Collins, J., delivered the opinion of the Court. This is an appeal from a judgment rendered in favor of the appellee for the death of Delpha H. Rodeheaver, killed when run over by appellant’s train in Oakland, Maryland. The suit was brought under the Federal Employers’ Liability Act, (the Act), it being alleged that he was engaged in interstate commerce at the time of the accident. In September, 1948, the State Roads Commission of Maryland, (Commission), began repairs on the Oak Street bridge in Oakland, Maryland, and employed the firm of Lattimore Construction Company to do the work.

In order to make these repairs it was necessary to suspend scaffolding under the bridge over the appellant’s tracks with a clearance of only a few feet above the trains. Double tracks of the main line of the appellant ran east and west through the town of Oakland and under this bridge. About one block west of the bridge there was a grade crossing at Oak Street. There was a sharp left curve in the tracks between this grade crossing and the bridge.

When trains passed under the scaffolding they created quite a danger for the men working thereon. Unless they removed themselves in ample time, hot steam, smoke and cinders from appellant’s engine would inflict serious injury. In order to safeguard these employees the Commission requested the appellant to put a watchman there. The appellant posted bulletins advertising for a man qualified to do this work.

Mr. Morrison, the superintendent of the Cumberland division for the ⁶³⁶ appellant said: “The man that had the proper knowledge of what would go on on the railroad; these bulletins were posted and the senior applicant was assigned, and Mr. Rodeheaver was the second applicant and was assigned to do this work.” He was paid his wages by the appellant, he having had 28 years experience on the railroad. The Commission, however, reimbursed the appellant for the wages he received while on this job. It is admitted by the appellant that Rodeheaver was its employee. Ordinarily the appellant ran its westbound trains on the northerly or No. 1 track and its eastbound trains on its southerly or No. 2 track.

The employees of the railroad were instructed in part, however, as follows: “They must expect trains to run at any time on any track in either direction. They must not stand on the track in front of an approaching engine or car for the purpose of boarding same. They will exercise care to avoid danger from approaching trains standing clear of all running tracks.” On October 20, 1948, Train No. 96, a loaded 67 car freight train, left Terra Alta, West Virginia, at 3:43 P.M. to travel through Oakland. The trainmen on that train had received a special order to “look out for scaffolding suspended under bridge 87-B, concrete overhead bridge at Oakland, Maryland, which will not clear man on car.

Between 7:30 A.M. and 4:00 P.M., daily, except Sunday, sound whistle as warning to men working on scaffolding and reduce smoke as much as possible.” Train No. 96 was shifted from the eastbound track to the westbound track at Terra Alta to allow the Cincinnatian also eastbound, to use the eastbound track. No. 96 traveling east struck and killed the decedent, Rodeheaver, who was walking east on Track No. 1, with his back to the train about 80 feet east of the Oak Street Bridge. No. 1 Track was the usual westbound track.' Appellant claims that the decedent was engaged in intrastate and not interstate commerce at the time of his death and therefore that his case does not come under the Federal Employers’ Liability Act. Prior to the ⁶³⁷ 1939 Amendment to the Federal Employers’ Liability Act, the test was whether the work was “in interstate transportation or work so closely related thereto as to be practically a part of it”.

The 1939 amendment, 53 U. S. Stat. 1404, 45 U. S. C. A. Sec. 51, however provides: “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” Cases relied on by the appellant prior to the 1939 Amendment are not helpful here. Appellant relies on the case of Holl v. Southern Pacific, D. C., 71 Fed. Supp. 21 (1947). In that case a clerk in a claim department of a railroad had the duty only of writing on a form the route over which freight, on which a claim for loss or damage had been made, had traveled. The court in that case held that she was not engaged in the furtherance of interstate commerce.

That case on the facts seems hardly similar to the one before this Court. Mr. Morrison, the superintendent for appellant said: “The State was doing the work on the Oak Street Bridge with a contractor, who was working for the State on this contract with the State; and when men are working under a bridge like that or on a bridge, the blast of a locomotive when he is working the throttle throws cinders out of there, and they just cut like buckshot; and if a man is under the bridge and got caught in that blast, it is liable to cause him injury and therefore we put men or the contractors, the State in this case, put a man there to warn the employees on the bridge to get in the clear when trains approached; also these employees may have been down on the tracks or crossing the tracks, to get clear of the tracks when the trains are approaching.” He also said that at one time he rode past on the train, and he got his “highball” ⁶³⁸ from Rodeheaver. Mr. Theis, the train master for the appellant, said he gave the deceased no other orders “than to tell him he was sent up to protect the men while working on the bridge”. On the other hand, Mr. King, the foreman for Lattimore Construction Company said he observed the deceased many times and was familiar with his duties as flagman at the bridge.

He said his custom “to give a clear sign was to give a highball to the locomotive, and the engineer gave a highball back” which was “two short blasts of the whistle”. Mr. King said: “He would wave his hand with a piece of white paper in his hand and in return he would get a signal from the locomotive.” He said the deceased did this “with all trains going both directions while this job was being done”, except with the train that killed him. In Albright v. Pa. R. R. Co., 183 Md. 421, 431 , 37 A. 2d 870 , this Court held that this 1939 Amendment should be liberally construed to effectuate the intention of Congress.

There was evidence that it was the duty and custom of the deceased, not only to warn the men working on the bridge, but to prevent appellant from injuring them; also to warn any of their men “down on the tracks or crossing the tracks”, and also the crews of the trains of his admitted employer, the appellant. As pointed out in Chicago M. St. P. & P. R. Co. v. Kane, 9 Cir., 33 Fed. 2d 866, whether an employee is engaged in interstate commerce within the Act depends on the facts of each particular case. It certainly could not be judicially declared in the instant case that no part of Rodeheaver’s duties as an employee was in the furtherance of interstate commerce or that his duties did not in some way directly or closely and substantially affect interstate commerce. Even before the 1939 Amendment it had been held that a crossing watchman in the employ of a railroad which operates in interstate commerce, whose duty it was, among other things, to prevent injury from trains, was engaged in interstate commerce under the Act.

Southern Pacific Co. v. Commission, 174 Cal. 16 , 161 Pac. 1142 . ⁶³⁹ In West v. Atlantic Coast Line R. R. Co., 174 N. C. 125 , 93 S. E. 479 , (1917), a watchman at a railroad crossing, whose duties were to warn persons traveling across the crossing and give signals to interstate trains at the time of the accident, was held to be engaged in interstate commerce and governed by the Federal Employer’s Liability Act. Federal Court cases since the 1939 Amendment seem to refute appellant’s contention. A repairman injured while making installations in coal cars was engaged in the furtherance of interstate commerce within the meaning of the Act. There the employer did not press the argument that the employee was engaged in intrastate commerce.

Skidmore v. Balto. & Ohio R. R. Co., 2 Cir., 1948, 167 Fed. 2d 54. A tinsmith employed in the railroad repair shops, the facilities of which were used in interstate commerce, was within the Act, even though he had received a workmen’s compensation award. Bretsky v. Lehigh Valley R. R. Co., 2 Cir., 1946, 156 Fed. 2d 594. An employee operating a crane used in repairing freight cars, which were employed in both intrastate and interstate commerce, was within the Act.

Shelton v. Thompson, 7 Cir., 1945, 148 Fed. 2d 1. A mechanic’s helper injured while repairing the stoker of a locomotive which had been used in interstate commerce, and which was intended for further use therein, was within the Act. Edwards v. Balto. & Ohio R. R. Co., 7 Cir., 1942, 131 Fed. 2d 366. A brakeman engaged in the moving of “dead” engines to a repairshop, which engines had been employed before and were to be employed after-wards in interstate commerce, was within the Act.

Ermin v. Penn R. R. Co., D. C., 36 Fed. Supp. 936. State cases also seem to support the appellee here. A boiler-maker engaged in intrastate commerce five days a week but who worked in interstate commerce the sixth day was held within the Act. Wright v. New York Central R. R. Co., 1942, 263 App. Div. 461 , 33 N. Y. S. 2d 531.

An employee working in the “back shops” of a railroad on disabled and “dead” engines, some of which are used ⁶⁴⁰ in interstate commerce, was held within the Act. Baird v. N. Y. Central R. R. Co., 299 N. Y. 213 , 86 N. E. 2d 567 (1949). See also Lewis v. Industrial Accident Comm., 1942, 19 Cal. 2d 284 , 120 Pac. 2d 886 ; Prader v. Penn. R. R. Co., 1943, 113 Ind.

App. 518 , 49 N. E. 2d 387 ; Avance v. Thompson, 1944, 387 Ill. 77 , 55 N. E. 2d 57 , reversing 320 Ill. App. 406 , 51 N. E. 2d 334 ; Moser v. Union Pac. R. Co., 1944, 65 Idaho 479 , 147 P. 2d 336 , 153 A. L. R. 341; Harris v. Missouri Pac. R. Co., 1944, 158 Kan. 679 , 149 P. 2d 342 ; Great Northern R. Co. v. Industrial Commission, 1944, 245 Wis. 375 , 14 N. W. 2d 152 ; Trucco v. Erie R. R. Co., 1946, 353 Pa. 320 , 45 A. 2d 20 ; Maxie v. Gulf M. & O. R. R., 1947, 356 Mo. 633 , 202 S. W. 2d 904 ; Atlantic Coast Line R. R. v. Meeks, 1947, 30 Tenn.

App. 520 , 208 S. W. 2d 355 ; Hallaway v. Thompson, Tex. Civ. App. 1950, 226 S. W. 2d 816 ; Pritt v. West Va. Northern R. Co., W. Va. 1948, 51 S. E. 2d 105 , 6 A. L. R. 2d 562, certiorari denied 336 U. S. 961 , 69 S. Ct. 891 , 93 L. Ed. 1113 ; St. Louis-San Francisco Ry.

Co. v. Wacaster, 1947, 210 Ark. 1080 , 199 S. W. 2d 948 , In its fourth prayer the appellant asked the court to instruct the jury “that if they find from the evidence that the éngineer of the Railroad Company had sounded his whistle in due time to warn the deceased, Delpha H. Rodeheaver, of the approach of the train, that there was no duty on the part of the Railroad also to inform the deceased that the train was not being operated on the usual or accustomed track.” Appellant claims that this prayer should have been granted because the failure to warn decedent of the eastbound train on westbound track was not evidence of negligence or a proximate cause of the accident. There was evidence that except for the usual warning at a crossing, 800 yards west of the bridge, no warning was given. As hereinbefore recited, the train at the time of this accident, was proceeding east on the track usually used for trains bound in a westerly direction. Appellant’s superintendent testified that it was not only the duty of the deceased to warn the em ⁶⁴¹ ployees on the bridge but also those employees who may have been down on the tracks or crossing the tracks.

There was also evidence that it was the custom of the deceased to give a clear sign to the trains as they passed under the bridge and that this was done with all trains going either easterly or westerly. The train crew was also issued orders to sound the whistle as a warning. It is therefore clear that the railroad knew or should have known that this employee, as a watchman, was on the tracks. There was testimony that the order from the division superintendent called for a watchman under the bridge.

It is admitted by the appellant in its brief that a number of cases hold under the Act “that where a train is run on the opposite track (i.e. the track usually used for trains bound in the opposite direction) and the railroad has reason to expect employees to be on the track, such as repairmen, it was the duty to either (a) warn them of the change in track or (b) give proper warning and proceed with caution.” As authority it cites: Louisville & N. R. Co., v. Asher’s Administrator, 1917, 178 Ky. 67 , 198 S. W. 548 , L. R. A. 1918B, 211; Smith v. Delaware & H. Co., 1929, 227 App. Div. 269 , 237 N. Y. S. 297; DeLillis v. Pittsburgh & Lake Erie Ry. Co., 1944, 350 Pa. 436 , 39 A. 2d 588 ; So. Ry. Co. v. McGuin, 4 Circ., 1917, 240 F. 649 ; Louisville & N. R. Co. v. Parker, 223 Ala. 626 , 138 So. 231 .

In Balto. & Ohio R. R. Co. v. Logsdon, 101 Md. 359 , 61 A. 189 , a train was backed westward on an eastbound track and the track walker was run over and killed. The defendants’ evidence was that there was a light on the end of the tender as it ran back, that the whistle was sounded from time to time and the bell constantly rung and that the engine driver did not see the deceased before he was struck. However, one of plaintiff’s witnesses said that after the accident there was no light on the tender. There was no evidence to explain why the deceased did not see or hear the engine or to show that the accident was caused by the absence of the light.

This Court there held that the evidence was not legally sufficient to ⁶⁴² show that there was any negligence on the part of the railroad company. However, it was said in that case at page 363: “It must be conceded that although it is not negligence to use under such circumstances a track for an engine going in an opposite direction from that for which the track is primarily intended, it is the duty of the agents in charge of such engine to adopt all reasonable precautions to avoid injuring those who have the right to be, or may be, on the track.” In this case, as there is evidence that the employees of the railroad company should have known that the watchman was on the tracks, the trial court was correct in refusing this fourth prayer. Louisville & N. R. Co. v. Simpson’s Adm’r, 64 S. W. 750 , 23 Ky. Law.

Rep. 1075; Concannon v. Davis, 123 Me. 450 , 123 A. 820 ; Pittsburgh, C. C. & St. L. Ry. Co. v. Bennett, 186 Ind. 672 , 116 N. E. 582 ; Kurn v. Weaver, 25 Tenn. App. 556 , 161 S. W. 2d 1005 . Compare, however, Amoroso v. B. & O. R. R. Co., 305 Pa. 195 , 157 A. 463 .

Cases in which engines have been backed up without warning seem to hold that the employer is liable under the Act. Pacheco v. New York, N. H. & H. R. Co., 2 Cir., 15 F. 2d 467 ; Messinger v. New York, N. H. & H. R. Co., 85 Conn. 467 , 83 A. 631 ; Cervona v. Delaware L. & W. R. Co., 95 N. J. L. 246, 114 A. 14 ; Louisville & N. R. Co. v. Schroader, Ky., 113 S. W. 874 ; Hudson v. Seaboard Air Line, 176 N. C. 488 , 97 S. E. 388 . Compare, however, D’Aurio v. Long Island R. R. Co., 240 N. Y. 241 , 148 N. E. 333 . During the trial, the appellant made the following proffer: “That the overhead bridge in Oakland, the repair and construction of and maintenance of it is entirely with the State of Maryland and the Baltimore and Ohio Railroad Company has no responsibility in any manner for the maintenance of the same, and under the agreement with the State Roads Commission was to save it harmless from all loss, cost, damage, or expense or claims therefor for injury to persons or damage to property in any manner due to or connected with or growing out of the erection of said bridge or its main ⁶⁴³ tenance or operation thereafter.” The contract between the appellant and the State Roads Commission was then offered in evidence to sustain this proffer and was refused by the court.

We think this refusal was proper because this case is not concerned in any way with whether the Commission should indemnify the appellant for any damage it might sustain as a result of this accident. The appellant also claims that this contract was offered to prove that the deceased at the time of the accident was guarding employees of the State or its contractors, not employees of the defendant. We see nothing in the contract to sustain this contention. The appellant’s “D” prayer asked the court to instruct the jury “that from all the evidence in this case the proximate cause of the injuries of the plaintiff’s decedent was his negligence in stepping upon the westbound track without first looking to the west and, therefore, the verdict of the jury must be for the defendant.” This prayer was refused