On appeal from a judgment of the Supreme Court, whose opinion is reported in 125 N.J.L. 258.
For the appellant, Wall, Haight, Carey & Hartpence (John A. Hartpence and Charles J. Gormley, of counsel).
For the respondent, Collins & Corbin (Edward A. Markley and Charles W. Broadhurst, of counsel).
The opinion of the court was delivered by
HEHER, J. The Federal Employers' Liability Act (45 U.S.C.A., §§ 51, et seq.) does not speak of interstate commerce in the technical sense. While the earlier cases gave the enactment a much broader purview, the criterion of employment in such commerce now is whether the employe, at the time of the injury, was "engaged in interstate transportation,
or in work so closely related to it as to be practically a part of it?" Shanks v. Delaware, Lackawanna and Western Railroad Co., 239 U.S. 556; 36 S. Ct. 188; 60 L. Ed. 436; Chicago and N.W. Railroad Co. v. Bolle, 284 U.S. 74; 52 S. Ct. 59; 76 L. Ed. 173. We entertain the view that the deceased employe was in that category. Concededly, his duties "were to oil and grease the switches, as well as clean and replenish the oil in the switch lamps on" appellant's "tracks * * * in its freight yard located at Weehawken, New Jersey;" and the "yards * * * and the tracks on which" decedent "performed the work * * * on November 10th, 1936" (the day of the fatal mishap) "were used" by appellant "as a classification yard * * * almost entirely, if not exclusively, for the movement and classification of freight cars, loaded and empty, moving in transportation between the several states of the United States."
As said in Rossi v. Pennsylvania Railroad Co., 115 N.J.L. 1; affirmed, 117 Id. 148, there is no formula which will automatically classify every case. Each case is resolved by its own circumstances, viewed in the light of the legislative purpose. The physical maintenance of tracks, switches and switch lamps employed in interstate transportation is an incident of such commerce, and is so closely identified with transportation as to be, to all intents and purposes, a part of it. Such is the intendment of the cited statute as read by the ultimate interpretative authority. Indeed, transportation itself is vitally dependent upon such service; and therefore the test of direct and immediate relation to interstate commerce in the legislative sense is met. There is not that remoteness of service which excludes the employment from the statutory class. It is an "intimate and integral part" of interstate transportation, to borrow the language of Mr. Justice Clarke in Kinzell v. Chicago, Milwaukee and St. Paul Railroad Co., 250 U.S. 130; 39 S. Ct. 412; 63 L. Ed. 893. Plainly, the tracks are an indispensable adjunct of transportation; and it is evident that service of this character is essential to that function, and so is likewise inseparable from it. This is implicit in the holding of the very case which differentiated between "transportation" and "commerce" and
found that the statutory category is not inclusive of employments so remote from interstate transportation that they cannot be deemed to be virtually a part of it. It was there pointed out that the workman "was not employed in interstate transportation, or in repairing or keeping in usable condition a roadbed, bridge, engine, car, or other instrument then in use in such transportation." Shanks v. Delaware, Lackawanna and Western Railroad Co., supra. And in the later case of Minneapolis and St. Louis Railroad Co. v. Winters, 242 U.S. 353; 37 S. Ct. 170; 61 L. Ed. 358, Mr. Justice Holmes distinguished between the making of repairs, in a roundhouse, upon an engine which had been used in hauling trains carrying both intrastate and interstate freight, and "the matter of repairs upon a road permanently devoted to commerce among the states." He said: "An engine, as such, is not permanently devoted to any kind of traffic, and it does not appear that this engine was destined especially to anything more definite than such business as it might be needed for. 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. Its next work, so far as appears, might be interstate or confined to Iowa, as it should happen. At the moment it was not engaged in either. Its character as an instrument of commerce depended upon its employment at the time, not upon remote probabilities or upon accidental later events."
In Erie Railroad Co. v. Collins, 253 U.S. 77; 40 S. Ct. 450; 64 L. Ed. 790, an employe of an interstate railway company assigned to duty in a signal tower and pumping station was held to be engaged in interstate commerce within the view of the cited statute while engaged in starting a gasoline engine at the pumping station for the pumping of water into a tank for daily supply to engines "in whichever commerce engaged." Referring to Chicago, B. and Q. Railroad Co. v. Harrington, 241 U.S. 177; 36 S. Ct. 517; 60 L. Ed. 941, Mr. Justice McKenna said that the employment was there "considered too distant from interstate commerce to be a part of it or to have 'close or direct relation to interstate transportation.'" As to the case then in hand, he continued:
"Plaintiff was assigned to duty in the signal tower and in the pump house, and it was discharged in both on interstate commerce as well as on intrastate commerce, and there was no interval between the commerces that separated the duty, and it comes, therefore, within the indicated test. It may be said, however, that this case is concerned exclusively with what was to be done, and was done, at the pump house. This may be true, but his duty there was performed and the instruments and facilities of it were kept in readiness for use and were used on both commerces, and the test of the cases satisfied." This case was overruled in Chicago and E.I. Railroad Co. v. Industrial Commission, 284 U.S. 296; 52 S. Ct. 151; 76 L. Ed. 304, where it was held that an employe injured while attempting to oil an electric motor used to supply power for hoisting coal into a chute, whence it was to be conveyed to locomotives principally employed in the movement of interstate freight, was not in "such close or direct relation to interstate transportation" as is ...