Opinion of the Court.

244 U. S.

for damages arising from personal injuries sustained by him in August, 1911, while at work for the company in its yard at Atlanta, Georgia. As submitted to the jury, the action was founded upon the Federal Employers' Liability Act of April 22, 1908, as amended by Act of April 5, 1910, (35 Stat. 65, c. 149; 36 Stat. 291, c. 143). The judgment was affirmed by the Georgia Court of Appeals (16 Ga. App. 551), and a writ of error brings it under our review.

The record shows that a petition and bond for the removal of the cause to the appropriate federal court upon the ground of diversity of citizenship was filed in due time by the defendant and overruled by the trial court. An assignment of error based upon this ruling has been abandoned, and properly so, in view of our decision in Kansas City Southern Ry. Co. v. Leslie, 238 U. S. 599, 602.

Whether, at the time he was injured, plaintiff was employed in interstate commerce, is the only substantial question; there being no dispute that defendant at that time was a common carrier by railroad engaged in commerce of that character.

As detailed in the opinion of the Court of Appeals, the circumstances of the occurrence were as follows: Plaintiff had been engaged in inspecting cars which had been put into an interstate train-No. 75-that ran between Atlanta, Georgia, and Birmingham, Alabama; he had inspected about 25 cars, and there remained to be inspected about 12 cars which were to be placed in the same train; while plaintiff was waiting for these, a collision between other cars of defendant occurred in the yard nearby, and several tracks were blocked by the wreckage; one of defendant's employees named O'Berry was caught in the collision and pinned beneath a car; in obedience to the printed rules of the company, plaintiff went immediately to the scene of the wreck to render what assistance he could, and was there instructed by a superior employee to go and get a "jack" to assist in raising the wrecked car

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so as to extricate O'Berry and clear the tracks of the wreckage; some of the remaining cars not yet placed in train No. 75 were to have been hauled over the tracks that were obstructed by the wreck, and on account of the obstruction it became necessary to detour them, whereby train No. 75 was delayed for about an hour; while plaintiff, assisting in clearing up the wreck, was carrying some blocks on his shoulder to be used in jacking up the wrecked car and replacing it upon the track, he stumbled over certain large clinkers which were on the roadway near the track, and, in stumbling, struck his foot against some old cross ties overgrown with grass, and in consequence fell and was seriously injured.

The court held that although plaintiff's primary object may have been to rescue his fellow employee, his act nevertheless was the first step in clearing the obstruction from the tracks, to the end that the remaining cars for train No. 75 might be hauled over them; that his work facilitated interstate transportation on the railroad, and that consequently he was engaged in interstate commerce when injured.

We concur in this view. From the facts found, it is plain that the object of clearing the tracks entered inseparably into the purpose of jacking up the car, and gave to the operation the character of interstate commerce. The case is controlled by Pedersen v. Delaware, Lackawanna & Western R. R. Co., 229 U. S. 146, 152; New York Central & Hudson River R. R. Co. v. Carr, 238 U. S. 260, 263; Pennsylvania Co. v. Donat, 239 U. S. 50; Louisville & Nashville R. R. Co. v. Parker, 242 U. S. 13. Pedersen v. Delaware, Lackawanna & Western R. R. Co., supra, holds that a workman employed in maintaining interstate tracks in proper condition while they are in use is employed in interstate commerce; the other cases are to the effect that preparatory movements in aid of interstate transportation are a part of such commerce within the meaning of the act.

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Of course, we attribute no significance to the fact that plaintiff had been engaged in inspecting interstate cars before he was called aside by the occurrence of the collision. Illinois Central R. R. Co. v. Behrens, 233 U. S. 473, 478; Erie R. R. Co. v. Welsh, 242 U. S. 303, 306.

It is contended that there was no sufficient ground for attributing negligence to defendant because of the presence of large clinkers in the path along which plaintiff, in the course of his duty, was called upon to pass. This is no more than a question of fact, without exceptional features, and we content ourselves with announcing the conclusion that we see no reason for disturbing the result reached by two state courts. Great Northern Ry. Co. v. Knapp, 240 U. S. 464, 466.


Judgment affirmed.



No. 220. Submitted April 25, 1917.-Decided June 11, 1917.

City ordinances granting street railway franchises in the State of Washington, with the right at any and all times to make reasonable rules and regulations for the management and operation of the railway lines thereby authorized, contained a proviso that such rules and regulations should not conflict with the laws of the State. Held: (1) That the proviso, fairly construed, meant the laws as they should from time to time exist. (2) That the act establishing the Public

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Service Commission of Washington (Laws 1911, c. 117), and orders of the commission requiring the appellant company to run through cars beyond the limits of the lines covered by such franchises over other parts of its system, were within the description of the proviso, and so did not impair its contract rights (if such they were) to make such rules and regulations.

A municipality cannot, by contract with a street railway company, foreclose the exercise of the police power of the State in respect of the regulation of rates of fare and transfer privileges, unless clearly authorized to do so by the supreme legislative power. Detroit United Railway v. Michigan, 242 U. S. 238, distinguished. Under the Constitution of Washington, which antedated the ordinances here in question, contractual provisions in franchises conferred by municipal corporations without express legislative authority are subject to be set aside by the legislature; and the Public Utilities Act, supra, supersedes any conflicting ordinance or charter provision of a city.

Where several street railway lines, built under distinct franchises, are owned and operated as one system, a public regulation concerning car service and fares will not be adjudged confiscatory because of its financial results to the line immediately affected, if the system as a whole remains profitable.

Where several street railway lines, built under distinct franchises, are owned and operated as one system, it is clearly within the bounds of reasonable regulation to establish through service between them, for a single fare.

223 Fed. Rep. 371, affirmed.

THE case is stated in the opinion.

Mr. James B. Howe and Mr. Hugh A. Tait for appellant.

Mr. W. V. Tanner, Attorney General of the State of Washington, Mr. Scott Z. Henderson and Mr. L. L. Thompson, Assistant Attorneys General of the State of Washington, and Mr. C. E. Arney for appellees.

MR. JUSTICE PITNEY delivered the opinion of the court.

Appellant (plaintiff below) owns and operates a street railway system in the City of Seattle, Washington,

Opinion of the Court.

244 U. S.

aggregating about 200 miles, as assignee of numerous franchises granted to its predecessors in interest by the cities of Seattle, West Seattle, and Ballard, and by King County. It filed its bill in the District Court to obtain relief from the operation and effect of an order made by the Public Service Commission of the State on March 24, 1915, bringing in as defendants the members of the commission and the Attorney General of the State. Plaintiff being a corporation of the State of Massachusetts, and defendants citizens of the State of Washington, the jurisdiction was invoked both upon the ground of diversity of citizenship and upon the ground that the order complained of was alleged to impair the obligation of contracts and deprive plaintiff of its property without due process of law, in violation of the Constitution of the United States. The order was made as the result of an investigation of which plaintiff had notice, and it contains the following provisions:

"(1) That the defendant company [plaintiff] continue the operation of through service on the Ballard Beach Line.

"(2) That the Alki Point and Fauntleroy Park lines be operated through the City of Seattle on First or Second Avenue as far north at least as Virginia Street.

"(3) That the defendant company furnish sufficient cars to provide seats for substantially all persons using the Alki Point and Fauntleroy Park lines."

The third paragraph was subject to a qualification; but since the District Court granted an injunction against this part of the order, and defendants have not appealed, the qualifying clause need not be set forth and we may confine our attention to the requirements of paragraphs 1 and 2. As to these, the District Court, three judges sitting, denied an application for a temporary injunction (223 Fed. Rep. 371), and plaintiff brings the case here by direct appeal under § 238, Jud. Code.

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