MR. JUSTICE VAN DEVANTER delivered the opinion of the court.
This was an action against a railroad company, by the widow and parents of one of its employes, to recover damages for his death while in its service in its railroad yard at North Sherman, Texas, the death being caused, as was alleged, by the negligence of other employes. The action was begun in one of the courts of the State and resulted in a judgment for the plaintiffs, which was affirmed by the Court of Civil Appeals. 148 S.W. Rep. 1099. A petition for a writ of error was denied by the Supreme Court of the State, and the present writ of error to the Court of Civil Appeals was then allowed. See Bacon v. Texas, 163 U.S. 207, 215; Norfolk & Suburban Turnpike Co. v. Virginia, 225 U.S. 264, 269.
A motion to dismiss the writ is interposed, but the grounds of the motion are plainly untenable, and it is denied.
In the trial court and again in the Court of Civil Appeals the railroad company contended that the injuries which caused the death of the deceased were received while the company was engaged, and while he was employed by it, in interstate commerce; that its liability for his death was exclusively regulated and controlled by the Employers' Liability Act of April 22, 1908, 35 Stat. 65, c. 149; and that, if liable, it was liable only to his personal representative and not to the plaintiffs or any of them. This contention was denied by both courts, and the correctness of that ruling is the matter now to be considered.
The cause of action sought to be enforced was not recognized at common law. Michigan Central Railroad Co.
The plaintiffs' petition was altogether silent upon that subject, and the defendant, by appropriate special exceptions, called attention to the two statutes, insisted
The defendant was a Texas corporation owning and operating a railroad extending from the boundary between Oklahoma and Texas southward through North Sherman. This railroad connected at the Oklahoma boundary with another one extending northward through Madill, and the two were so operated that trains were run through from North Sherman to Madill and from Madill to North Sherman. The defendant was engaged in both intrastate and interstate commerce, much the larger part of the traffic handled in its North Sherman yard being interstate. The deceased was employed by the defendant as a yard clerk in that yard, and his principal duties were those of examining incoming and outgoing trains and making a record of the numbers and initials on the cars, of inspecting and making a record of the seals on the car doors, of checking the cars with the conductors' lists, and of putting cards or labels on the cars to guide switching crews in breaking up incoming, and making up outgoing, trains. His duties related to both intrastate and interstate traffic, and at the time of his injury and death he was on his way through the yard to one of the tracks therein to meet an incoming freight train from Madill, Oklahoma, composed of several cars, ten of which were loaded with freight. The purpose with which he was going to the train was that of taking the
At the conclusion of the evidence the defendant requested the court to direct a verdict in its favor on the ground that the undisputed evidence disclosed that the case was one in which the defendant's liability was controlled by the Federal statute, and that, if liable, it was liable only to the personal representative of the deceased, and not to the plaintiffs. The request was denied, and the jury returned a verdict for the plaintiffs, in which the damages were apportioned among them conformably to the state law.
In its original opinion the Court of Civil Appeals took the view (a) that by not interposing a plea in abatement the defendant waived any right it had to object that the plaintiffs were not personal representatives of the deceased, (b) that the plaintiffs were the real beneficiaries and it was immaterial that they were not the deceased's personal representatives, and (c) that the state statute authorized a recovery by the plaintiffs on the case stated in the petition, and as the Federal statute was not pleaded as a defense it could not be invoked to defeat a recovery, no matter what may have been its effect on the state statute. In its opinion on the motion for rehearing the court recognized the supremacy of the Federal statute, if applicable, and held that the evidence did not bring the case within that statute. While recognizing that the train which the deceased was proceeding to examine was an interstate train, having just come from Oklahoma, the court said: "The North Sherman yards were the terminal for that train, that is, that was the end of the run of that train. If any trains went south, they were made up in the yards, new trains, and sent south, or other
In our opinion the evidence does not admit of any other view than that the case made by it was within the Federal statute. The train from Oklahoma was not only an interstate train but was engaged in the movement of interstate freight, and the duty which the deceased was performing was connected with that movement, not indirectly or remotely, but directly and immediately. The interstate transportation was not ended merely because that yard was a terminal for that train, nor even if the cars were not going to points beyond. Whether they were going further or were to stop at that station, it still was necessary that the train be broken up and the cars taken to the appropriate tracks for making up outgoing trains or for unloading or delivering freight, and this was as much a part of the interstate transportation as was the movement across the state line. McNeill v. Southern Railway Co., 202 U.S. 543, 559. See also Johnson v. Southern Pacific Company, 196 U.S. 1, 21.
It comes then to this: The plaintiffs' petition, as ruled by the state court, stated a case under the state statute. The defendant by its special exceptions called attention to the Federal statute and suggested that the state statute might not be the applicable one. But the plaintiffs, with the sanction of the court, stood by their petition. It was to the case therein stated that the defendant was called upon to make defense. A plea in abatement would have been unavailing, because the plaintiffs were the proper parties to prosecute that case. When the evidence was adduced it developed that the real case was not controlled by the state statute but by the Federal statute. In short, the case pleaded was not proved and the case proved was not pleaded. In that situation the defendant interposed the objection, grounded on the Federal statute,
The judgment is accordingly reversed and the case is remanded for further proceedings not inconsistent with this opinion, but without prejudice to such rights as a personal representative of the deceased may have.
MR. JUSTICE LAMAR dissents.