Bennett v. Lehigh Valley R.

J. B. McPHERSON,

Circuit Judge. I regret the delay in deciding this motion; but, as the Court of Appeals has recently been considering the scope of the Employers’ Eiability Act of 1908, it seemed not only desirable, but almost necessary, to await the action of that tribunal. The case I mean is Pedersen v. Delaware, etc., Co., 197 Fed. 537 , in which the opinion has just been filed. Upon the principles there laid down it seems clear that no recovery can be had for the death of the plaintiff’s husband. At the time of the fatal collision he was not actually employed in interstate commerce, and it does not even appear that he had just previously been so employed, and was returning to his home. While it is true that he was not a passenger on the coal train, but was still an employe and was permissively there, T am unable to see on what ground he can be regarded as then engaged in interstate commerce. And, if he was not so engaged, he was not protected by the act of Congress. This principle is recognized also in Lamphere v. Oregon, etc., Co. (C. C.) 193 Fed. 249 . Recovery was there refused in the case of an employé, although he had already received orders to take part in interstate commerce, because he was injured while on his way to work, but before the interstate service had actually begun. It is also true that under the company’s rules Bennett may have been subject to call if his services hacl been needed by the train on which he was riding, and in that event he might have become an employe engaged in interstate commerce; but in fact he had not been so called upon, and was merely riding in the caboose by the company’s permission on the way to his home.

The clerk is directed to enter judgment in favor of the defendant upon the reserved point. To this order an exception is sealed in favor of the plaintiff.