BRAVIS v. CHICAGO, M. & ST. P. RY. CO., 217 F. 234

SANBORN, Circuit Judge (after stating the facts as above). The chief contention of counsel for plaintiff in support of their specification of error in this case is that the facts established by the evidence sustain the conclusion that the plaintiff was employed in interstate commerce while constructing the bridge on the cut-off. But there were no rails on the roadbed on this cut-off. It never had been used, it was not then used, and until it should be ironed it could not be used, by the defendant in interstate commerce.

The mere fact that it was the purpose and intention so to use it at some future time did not make it an instrumentality of interstate commerce. That purpose and intention might be changed, and it might never be used in interstate commerce, or at all. The argument that the building of the cut-off was the mere correction or prevention of a defect or insufficiency of the defendant’s instrumentality for conducting interstate commerce is too remote and inconsequential to convince.

The building of such a cut-off is new construction for use in interstate commerce, as much as the building of a new engine or car on plans prescribed by a railroad company to run over the cut-off or to take the place of an engine or car worn out in interstate commerce would be. The federal Employers’ Liability Act protects only those employed in interstate commerce.

Those employed in the preparation or construction of roadbeds, rails, ties, cars, engines, and other instrumentalities which are intended for use in interstate commerce, but have never been and are not in use therein, are not employed in interstate commerce, and are not protected by that act.

There was no error in the ruling of the trial court that an employé engaged in the construction of a bridge, 600 feet distant from a railroad, on a cut-off more than a mile in length, which had never been provided with rails or used as a railroad, was not employed in interstate commerce, although his employer was engaged, and when the cut-off should be completed intended to use it, in interstate commerce. Pedersen v. Delaware, Lackawanna & Western R. R. Co., 229 U. S. 146, 152, 33 Sup. Ct. 648, 57 L. Ed. 1125; Wabash R. R. Co. v. Hayes, 234 U. S. 86, 34 Sup. Ct. 729, 58 L. Ed. 1226, filed May 25, 1914; Jackson v.

Chicago, Milwaukee & St. Paul Ry. Co. (D. C.) 210 Fed. 495. Counsel cite San Pedro, L. A. & S. L. R. Co. v. Davide, 210 Fed. 870, 127 C. C. A. 454, to the point that the plaintiff was employed in interstate commerce when he was injured, because he was assisting to run the hand car and to keep it out of the way of interstate commerce moving over the' railroad. But in Davide’s Case the employé was employed in interstate commerce during the day, and the, court held that his employment extended from the time he started from his camp on the hand car in the morning until he returned to the camp at night.

The plaintiff was not employed in interstate commerce during the day, and by the same mark he was not so employed while he was going on the hand car to and returning from his work. He bore the same relation to the defendant while he was on the hand car that he would have borne to it if he had walked on the railroad with its permission and at his own risk on his way to and from his work.

It is said that the complaint, after its amendment, stated a good cause of action under the state laws and also under the federal Employers’ Liability Act, and it is insisted in view of that fact that the court erred in directing the verdict. This case does not present a complaint where, in separate counts, a cause of action is pleaded under the federal act and another under the state law, and no election is made, and we do not determine the effect of a motion for a directed verdict in such a case.

It presents a case in which the plaintiff at the close of his own case so amended his complaint, which stated in a single count a cause of action under the state law, as to make it state a cause of action under the federal Employers’ Liability Act. The plaintiff thereby elected to abandon his cause of action under the state law and to insist upon a recovery under the federal act.

The defendant then moved for a directed verdict, and the court could not lawfully escape the decision of the only question thus "presented, the question whether or not the evidence sustained the cause of áction which alone the plaintiff had then pleaded and on which he had elected to rely. There was no error in its decision of that issue, and the plaintiff was estopped from repudiating his election. St. Louis, I. M. & S. Ry. Co. v. Hesterly, Adm’r, 228 U. S. 702, 33 Sup. Ct. 703, 57 L. Ed. 1031; Union Pacific Ry. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983; Northern Pacific Ry. Co. v.

Slaght, 205 U. S. 122, 131, 27 Sup. Ct. 442, 51 L. Ed. 738; Matz v. Chicago & A. R. R. Co. (C. C.) 88 Fed. 770; Whalen v. Gordon, 95 Fed. 305, 314, 37 C. C. A. 70, 79. Let the judgment below be affirmed.