holding that “when a railroad provides shelter or food or both for its employees, and they are using the accommodations so provided to prepare themselves for their work, or to rest and recuperate, they must be regarded as in its ‘employ’ ”
How later courts described this case
- holding that “when a railroad provides shelter or food or both for its employees, and they are using the accommodations so provided to prepare themselves for their work, or to rest and recuperate, they must be regarded as in its ‘employ’ ”
- eating and sleeping in bunk car, even when not on call, are “activities which, though literally not part of the work, are necessary to its performance.”
- Eating and sleeping are essential to performing work, and in particular when employees on layover use accommodations provided by the employer for eating or sleeping, they are acting within the scope of their employment.
- indemnity for one’s own negligent conduct follows only from an expression of such a purpose beyond any peradventure of doubt
Written by the judges who cited it.
The opinion
SWAN, Circuit Judge
(dissenting in part).
An interstate carrier’s liability under the Federal Employers’ Liability Act is to “any person suffering injury while he is employed by such carrier in such commerce.” 45 U.S.C.A. § 51 . The first question is whether Mostyn was so employed while asleep on railroad property during the night preceding a Saturday when he may have intended to go to work. Before the amendment of 1939, the authorities clearly indicate to my mind a negative answer. The amendment was intended to do away with the “moment of injury” rule so that an employee whose work has to do with both interstate and intrastate commerce shall not be deprived of the benefits of the Act because his Work at the moment of injury was intrastate. It provides that an employee “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 * * * shall * * * be considered as entitled to the benefits of this chapter.” During the night hours normally devoted to sleep the employee owes no duties to his employer; nor do the hours spent in sleep “directly or- closely and substantially, affect such commerce,” even though he may work better after a night’s rest. Hence I do not think the 1939 amendment should affect our decision. Mostyn was privileged to sleep in the hunk car (and a certain sum was deducted from his wages if he did so) but he was not required to sleep there; he could, if he wished, have rented a room in the nearby village as one of the track crew did. Therefore the question whether he was employed in interstate commerce during the night is no different than it would be had he been sleeping at a hoarding house in the village or at his own home and suffered injury through the negligence of the railroad* as, for example, by reason of the destruction of the house by fire caused by a defective spark arrester in a railroad engine. In my opinion he was not injured while he was employed in interstate commerce. He was, however, an invitee on the railroad premises at night. I think the judgment should be reversed and the cause remanded for a new trial in order that the jury may pass upon his rights as such invitee. I concur in dismissal of the cross complaint.