RAILROAD EMPLOYES AND WORKMEN'S COMPENSATION LAWS.

By HARRY A. MACKEY, Chairman, Workmen's Compensation Board, Pennsylvania Department of Labor and Industry.

After seven months' actual experience in the administration of the Pennsylvania Workmen's Compensation Law, it became apparent to the Board that there was a certain line of cases, the consideration of which must then be postponed until the Courts of last resort should give us a guide by which they could be properly and finally adjudicated. Accordingly, on August 18, 1916, we created what we called a "Postponed Calendar” and placed thereupon twenty-six appeals pending before us each involving the question of conflicting jurisdiction be tween the United States statute and State Workmen's Compensation Laws. The determination of these cases suggested both questions of law and fact. In some, it was admitted that both the railroad company and the employe at the time of the injury to the latter were engaged in interstate commerce; while in the remaining ones the circumstances were such that they presented nice questions of legal construction. At that time there were two well defined theories as to these cases each having support in the Supreme Court of certain states. Appeals were pending in the Supreme Court of the United States. The one thought that prevailed in the States of New York and New Jersey was that, while admitting that Congress under the Constitution enjoyed the exclusive right to legislate upon the questions involving interstate commerce, it was contended that where an employe of a railroad company was injured without negligence on the part of the defendant, that Congress had not by the Employers' Liability Act of 1908 legislated to the exclusion of a state law which provided compensation without regard to negligence. This thought was typified in the case of Winfield v. New York Central Hudson River Railroad Company then in the United States Court for final review. To the contrary the Courts of California and Ill inois had held that where the power of Congress has been exerted in the direction of covering the matters sought to be regulated, and its legislation is comprehensive to that end, then all state regulation must give way before the superior law. This thought was expressed in the cases of Smith v. The Industrial Accident Commission of California, 147 Pac. 600 and Staley v. Illinois Central Railroad Company, 268 Ill. 356,

On May 21, 1917 the Supreme Court of the United States finally determined this question, rejecting the thought of the Court of Error & Appeals of New York and affirming the position of the California and Illinois Courts. It proclaimed the doctrine that the federal Employers' Liability. Act of 1908 applies to all injuries to employes of interstate carriers occurring while the carrier and employe are engaged in interstate commerce whether such injury be caused by the carrier's negligence or not. Therefore workmen's compensation acts of the various states were held not to apply to such injuries. In the meantime the list of such cases had increased from the original number of 26 to over 100 within our own state.

It then became our duty to consider these cases and one by one to determine the facts of the employment. When it was perfectly clear that both the carrier and the injured employe had been engaged in interstate commerce at the time of the accident we had no other course left open but to deny compensation. In many others these questions of fact were so interwoven with interesting legal problems that final determination involved very fine distinctions of law.

In addressing ourselves to such cases the Supreme Court of the United States had very frequently given us the rule to which it was necessary to strictly adhere. It must be remembered that the Act of Congress of 1908 was the attempt of our national law makers to lessen the rigors of the old common law rules of evidence and to make easier the burdens that had thereby been thrown upon plaintiffs who sought to recover for injury to employes growing out of railroad activities. The Supreme Court of the United States in all these decisions strove to write into its opinions the humanities behind this Act. This court endeavored at all times to translate into its decisions the evident intention of Congress at the time of the adoption of this legislation. As late as the Winfield case, Mr. Justice Van De Vanter sought the Congressional Record to discover the intention of Congress at the time this law was passed and in his opinion quoted from the House and Senate Report of the First Session of the 60th Congress as follows: It (the bill then under consideration subsequently the Employers' Liability Act of 1908) is intended in its scope to cover all commerce to which the regulative power of Congress extends *** by this bill it is hoped to fix a uniform rule of liability throughout the Union with reference to the liability of common carriers to their employes * A Federal statute of this character will supplant the numerous state statutes on the subject so far as they relate to interstate commerce. It will create uniformity throughout the Union, and the legal status of such employers' liability for personal injuries instead of being subject to numerous rules will be fixed by one rule in all the states."

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The judicial minds of our courts therefore were not impervious to public sentiment as a very evident purpose runs through all the 500 or more decisions of the United States Courts interpreting the Federal Employers' Liability Act of 1908 to so liberally construe this Act that it could extend its benefits to as large a field of labor as possible. This resulted in decisions that stamped almost every form of railroad activity on the part of the employes as interstate commerce. This was entirely to the advantage of the railroad employe up to the time that the various state legislatures began to adopt workmen's compensation legislation. Now, however, in the light of the Winfield decision this liberality on the part of the Courts in defining what constitutes interstate commerce works to the disadvantage of the employe as he is thereby barred from state compensation.

We have now this situation-nearly every occupation of a railroad employe must be construed to be a part of interstate commerce and only a small fraction of the cases of injury to railroad employes can be considered by Compensation Boards. One of the most comprehensive as well as inclusive opinions in this respect is found in Pederson v. D. L. & W. R. R. 229 U. S. 146, where the Supreme Court said: "That the defendant was engaged in interstate com merce is conceded and so we are only concerned with the nature of the work in which the plaintiff was employed at the time of his injury. Among the questions which naturally arise in this connection are these: Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars; and sound economic reasons unite with settled rules of law in demanding that all these instrumentalities be kept in repair. The security, expedition, and efficiency of the commerce depends in large measure upon this being done. We are of the opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements and the nature of each determined regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test always is; Is the work in question a part of the interstate commerce in which the carrier is engaged."

I will not cite several other cases I have here except to say that under that comprehensive opinion, that exclusive suggestion of the Supreme Court, you can scarcely imagine any work of a railroad employe that was not stamped by that opinion and others following it to be Interstate in character. As a workman turning out a part of the machinery of a locomotive that is used in Interstate commerce, although his work is shop work, the courts have held that he is engaged in Interstate commerce. One package of interstate shipment or, in other word, a package upon a train consigned from a point within our state to a point outside our state impresses the whole train with the character of interstate commerce and all the employes in the operation of that train are engaged in interstate commerce and if injured their cases cannot be considered by a State Board.

So with the Seale case in 229 U. S. 156-while helpful to railroad men before the advent of workmen's compensation laws-is now to their disadvantage. This case held that "yard clerks examining incoming and outgoing trains and making a record of the seals on car doors, checking cars with conductors' lists, putting cards or labels on the cars to guide switching crews in making up incoming and outgoing trains engaged in interstate commerce are within the Federal Act if there are any interstate shipments in the train."

The Carr case in 238 U. S. 260 is in the same class, where it was held: "a brakeman on a 'pick-up' freight train, running between points in the same state, but containing some cars loaded with interstate freight, who was injured while attempting, in the course of his employment, to set the brake on an interstate car which had been cut out of the train and backed into a siding, was employed in interstate commerce."

Our Board has held that when a case comes before us simply showing a railroad employe injured within the course of his employment in the State of Pennsylvania, there is no presumption that either he or the carrier at the time was engaged in interstate commerce, and that if the carrier sets up interstate commerce as a defense, then it assumes the burden of proof and must indisputably prove that fact. In this we are sustained in Osborn v. Gray, 241 U. S. 16. However, notwithstanding the fact that in applying our state law we are trying to follow the precedent set by the Supreme Court of the United States in its attempt to extend the benefits of the Act of Congress of 1908 to as large a field of employes as a liberal construction of the Act will permit, and while we have placed all the burden of proving interstate commerce upon the defendants, nevertheless, a startling and lamentably large number of otherwise meritorious cases have necessarily been denied compensation in our state, which leads us to the reiteration of certain of our observations in this respect and a proposal of a remedy therefor.

At the time we created the "Postponed Calendar" we said: "The happiness, contentment, and welfare of the vast army of railroad workers of the United States will be more promptly and thoroughly secured by allowing them to submit their claims for compensation to state tribunals than by any scheme that can be devised by Congress. In our State the industrial workers thoroughly appreciate the Pennsylvania Workmen's Compensation Law of 1915. A feeling of contentment and certainty has taken possession of the man who toils, for he knows that no matter what misfortune may overtake him in his daily labor the legislature of his State has made provisions for his dependents that will secure them against real want and will care for and nourish them during a period when relief is most needed.

"On the other hand the citizen who is engaged in railroading goes to his hazardous employment each day knowing that if he should be killed in his occupation, that he has left to his wife and dependent children an inheritance of litigation. They must meet the railroad company in court and establish its negligence before a jury can consider the question of damages. All the disadvantages are upon those least able to meet this burden of proof. They will also be subject to all the delays, uncertainty, and expense which a compensation law avoids."

At the same time that Mr. Justice Van DeVanter announced the decision of his court in the Winfield case, Mr. Justice McReynolds in the case of Marie Jensen v. Southern Pacific Railroad Company decided that the jurisdiction in all maritime matters is exclusively Federal and that the Workmen's Compensation Acts of New York are unconstitutional and invalid insofar as they attempt to invade that jurisdiction. In other words, this Court then decided that inasmuch as the Constitution had given the United States Courts jurisdiction over maritime matters that all activities in connection with loading and unloading ships in navigable waters must be referred to such Courts and could not be considered by workmen's compensation tribunals. The last Congress undertook to meet that decision as follows: "To amend sections twenty-four and two hundred and fifty-six of the Judicial Code, relating to the jurisdiction of the district courts, so as to save to claimants the rights and remedies under the workmen's compensation law of any State.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That clause three of section twenty-four of the Judicial Code is hereby amended to read as follows:

"Third. Of all civil causes of admiralty and maratime jurisdiction, saving to suitors in all cases the right of a common law remedy where the common law is competent to give it, and to claimants the rights and remedies under the workmen's compensation law of any State: