Pedersen v. Delaware, Lackawanna & Western Railroad

Mr. Justice Lamar

with whom concurred

Me. Justice Holmes and Me. Justice Lueton, dissenting:

I am unable to assent to the proposition that a man carrying bolts to be used by him in repairing a railroad bridge was employed in interstate commerce.

Transportation has been defined as commerce, and those engaged in transportation are employed in commerce. But in building the bridge originally the carrier was not “engaging in commerce between the States,” and the plaintiff, in subsequently repairing it, was not *154 employed in such commerce. Such work was not a part of commerce, but an incident which preceded it.

The act provides that “every common carrier by railroad, while engaging in commerce, between any of the States or Territories . . . shall be liable in damages to any person suffering injury while employed by such carrier in such commerce.”

The defendant, though engaged in both interstate and intrastate commerce was also engaged in many other incidental activities which were not commerce in any sense.

The railroad had to be. surveyed and built, bridges had to be constructed and renewed, cars had to be manufactured and repaired, warehouses had to be built and painted, wages had to be paid’and books kept; but. these transactions, though incident to it were not transportation, and, therefore, not within the purview of the statute limited to persons employed in commerce. Otherwise the law would embrace “all of the activities in any way connected with trade between the States and exclude staie control-over matters purely domestic in their- nature.” Hooper v. California, 155 U. S. 648, 655 . Acts burdening interstate commerce can, of course, be pro-, hibited by Congress. But when Congress itself limits the operation of the statute to persons injured while employed in interstate- commerce the státute does not- extend to its incidents and is confined to transportation. It does not include manufacturing, building, repairing, for they are not commerce,- whether performed by a private person, a railroad, or its agents.

It is conceded that a line must be drawn between those employes of. the carrier who are employed in commerce and those, engaged in other departments of its business. It must be drawn so as to take in on one side those en-' gaged in transportation, which is commerce, otherwise there is no logical reason why it should not include every *155 agent of the company; for there is no other test by which to determine when he must sue under the state statute and when under the act of Congress; for if a man on his way to repair a bridge is engaged in interstate commerce, then the man in the shop who made the bolts to 'be used in repairing the bridge is likewise so engaged. If they are, then the man who paid them their wages, and the bookkeeper who entered those payments in the accounts, are similarly engaged. For they are all employed by the carrier, and the work of each contributes to its success in hauling freight and passengers.

This view is supported by the two cognate statutes. The Hours of Service Law applies only to those “engaged in the movement, of trains” and the Safety Appliance Law refers, not to machines in the shop, but to cars and locomotives, which are the immediate instruments of transportation. The Employers’ Liability Act in like manner applies to those engaged in transportation and not to those employed in building, manufacturing or repairing.

The plaintiff was carrying'bolts to be used in repairing a bridge. That was not interstate commerce, and in my opinion the court below properly held that his rights were to be determined by the laws of the State of New Jersey and not by the act of Congress.

Mr. Justice Holmes and Mr. Justice Lurton concur in this dissent.