Syllabus.

[37 App.

MCNAMARA v. WASHINGTON TERMINAL COMPANY.

CARRIERS; MASTER AND SERVANT; EMPLOYER'S LIABILITY ACTS OF CONGRESS; CONSTITUTIONAL LAW; RAILROADS; WASHINGTON TERMINAL COMPANY; TRIAL; DIRECTION OF VERDICT; APPEAL AND ERROR.

1. McNamara v. Washington Terminal Co. 35 App. D. C. 230, referred to. 2. Hyde v. Southern R. Co. 31 App. D. C. 466, referred to, which upheld the constitutionality of the employer's liability act of Congress of 1906 (34 Stat. at L. 232, chap. 3073, U. S. Comp. Stat. Supp. 1909, p. 1148), so far as it applies to the District of Columbia.

3. The application of the employer's liability act of Congress to the District of Columbia, so far as it grants a right of action to employees, or as it applies to common carriers operating exclusively within the District, and not forming part of an interstate system, is not dependent upon the right of Congress to legislate under the commerce clause of the Constitution, but to the power of Congress to legislate generally for the District.

4. In the case of railroads, the tracks, terminals, switches, stations, cars, engines, appliances, and the methods of operation, are all, when employed as component parts of a general system engaged in interstate traffic, instrumentalities of interstate commerce, within the scope of congressional legislation.

5. The employers' liability act of Congress is for the protection of employees against the reckless and careless negligence of fellow servants, but it possesses a broader and higher object, namely, to require companies engaged in the business of common carriers to exercise the highest care in the selection of their employees and in the use of approved equipment, in order that the agencies of commerce may be operated not only with the greatest degree of safety to the men employed, but that people and property may be transported without loss or injury; and it should be liberally construed in order that the intention of Congress may be made effective.

6. It is not necessary that a railroad should actually own cars in order to be a common carrier engaged in interstate commerce, but it is sufficient if it owns and controls one of the instrumentalities essential in carrying on trade and commerce between different points, without the use and subjection to the control of which such trade and commerce cannot be conducted.

7. The Washington Terminal Company, which exclusively manages, operates, and controls all steam railroad passenger traffic entering into and leaving the city of Washington, while within the zone occupied by its station and tracks, is engaged in interstate commerce, and is a common carrier within the meaning of the employers' liability act of Congress, and may be liable as such to one of its employees for the negligence of a fellow servant.

8. Courts should avail themselves of every opportunity to facilitate the despatch of business, curtail cost, and discourage litigation, when it can be accomplished with equal justice to all concerned.

9. The action of the trial court in an action for damages against a corporation for personal injuries received through the negligence of a fellow servant, in directing a verdict for the defendant, on the ground that the defendant was not a common carrier within the meaning of the employers' liability act of Congress, instead of taking the verdict of the jury subject to the opinion of the court under commonlaw rule 52 of the lower court, referred to with disapproval.

10. The propriety of the action of the lower court was questioned by this court, when, over the objection and exception of the plaintiff, it directed a verdict for one of two defendants in a personal injury case, at the close of plaintiff's case in chief, before the other defendant had offered its testimony; and where the court directed a verdict for such other defendant at the close of all the testimony, and the plaintiff appealed, and this court on the appeal held that the action of the trial court in so directing a verdict was erroneous, the judgment on the separate verdicts was reversed, and a new trial ordered as to both defendants.

No. 2274. Submitted April 5, 1911. Decided May 29, 1911. Petition for rehearing denied October 5, 1911.

HEARING on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia in a personal injury action against two defendants, entered upon two separate verdicts, one verdict being directed by the court in favor of one of the defendants at the close of the plaintiff's case in chief, and the other verdict directed for the other defendant at the close of all of the testimony.

Reversed.

The COURT in the opinion stated the facts as follows:

This cause is here on appeal from a judgment of the supreme

Vol. XXXVII.-25.

court of the District of Columbia in favor of appellees, the Washington Terminal Company, a corporation, and the Baltimore & Ohio Railroad Company, a corporation, defendants below, in an action brought by appellant, Edward McNamara, to recover damages for personal injuries.

Plaintiff sued the defendant companies as common carriers doing business in the District of Columbia, alleging in substance that he was a fireman in the regular employ of the Baltimore & Ohio Railroad Company; that on the day of the accident, January 22, 1908, he was in the employ of the Washington Terminal Company, and that, at the time of the accident, he was engaged in the performance of his duties on one of its engines in the yards of the terminal company in this city. The engine was standing on what is known as track 35, when, through an error of a switchman in the employ of the terminal company, an engine belonging to the Baltimore & Ohio Railroad Company approaching on track 36, in response to a signal from the switchman, was switched onto track 35, colliding with the engine plaintiff was on, and causing the injuries complained of by plaintiff. To the declaration defendants filed two pleas, the general issue and a special plea in bar. The special plea set up a relief benefit contract, under which plaintiff had received benefits. This plea was disposed of on demurrer through a special appeal to this court. McNamara v. Washington Terminal Co. 35 App. D. C. 230. The cause was then tried by a jury on the general issue. At the close of plaintiff's testimony, the court, on motion of counsel for defendants, directed the jury, over the objection and exception of counsel for plaintiff, to return a verdict for defendant Baltimore & Ohio Railroad Company. This motion was based upon the ground that the evidence adduced in plaintiff's behalf failed to show any negligence on the part of that company.

The defendant Washington Terminal Company then offered evidence to show the character and nature of the business in which it is engaged in the District of Columbia. When all the testimony in the case had been submitted, counsel for defendant moved the court to direct a verdict in its favor, on the ground

Opinion of the Court.

D. C.] that the accident was caused by the negligence of a fellow servant, and that the terminal company is not a common carrier, and could not, therefore, be held liable under the employers' liability act of 1906. This motion was granted, and a verdict in favor of the defendant was directed. From the judgment thereon this appeal is prosecuted.

Mr. A. E. L. Leckie, Mr. Creed M. Fulton, Mr. Joseph W. Cox, and Mr. John A. Kratz, Jr., for the appellant,

Mr. George E. Hamilton, Mr. M. J. Colbert, Mr. John J. Hamilton, and Mr. John W. Yerkes for the appellee.

Mr. Justice VAN ORSDEL delivered the opinion of the Court:

The chief proposition presented by this appeal is whether or not the Washington Terminal Company is a common carrier within the meaning of the employers' liability act (34 Stat. at L. 232, chap. 3073, U. S. Comp. Stat. Supp. 1909, p. 1148). The acts of Congress of February 12, 1901 (31 Stat. at L. 774, chap. 354), and February 28, 1903 (32 Stat. at L. 909, chap. 856), in general, required the Baltimore & Ohio Railroad Company and the Philadelphia, Baltimore, & Washington Railroad Company, commonly known as the Pennsylvania Company, to eliminate the grade crossings in this city, and to construct a large and commodious union station to accommodate the passenger traffic into and out of the city of Washington.

By the act of 1901 the Baltimore & Ohio Railroad Company was permitted to organize the Washington Terminal Company, under the general railroad incorporation laws of the District of Columbia, with a capital stock of $5,000,000 and to subscribe for all of the stock of the company. The terminal company was "authorized and empowered, from time to time, to take, acquire, and hold in fee simple, all lands and property required" for the terminals, stations, yards, railroad facilities, and other works authorized by this act."

The act of 1903 authorized the Philadelphia, Baltimore, &

Washington Railroad Company to acquire by purchase from the Baltimore & Ohio Railroad Company one half of the capital stock of the terminal company. The operating agreement between the terminal company and the various railroad companies entering the District of Columbia, hereafter referred to, show that this purchase was made. Prior to the organization of the Washington Terminal Company, the Baltimore & Ohio and the Philadelphia, Baltimore, & Washington Railroad Companies owned all the railroad lines within the District of Columbia. The other roads entering the District under contracts with these companies used their tracks and stations. Since the organization of the terminal company, these two companies own all roads in the District, except those owned by the terminal company. It will therefore be observed that the two companies formerly owning the entire system of railroad lines within the District of Columbia became the owners of all the stock of the terminal company.

The act provides for the location of "the main passenger station and terminals for the accommodation of the passenger traffic of both the Baltimore & Ohio Railroad Company and the Philadelphia, Baltimore, & Washington Railroad Company, and the passenger traffic of such other companies as may be moved over the railroads of either of said two companies." It further provides that the "terminal company is also expressly authorized and empowered, subject to the approval of the Commissioners of the District of Columbia, to acquire and become possessed of such lands in the District of Columbia, outside the city limits, as may be from time to time needed for the purpose, and thereon to construct, maintain, own, and operate yard tracks, switches, roundhouses, shops, and other structures to adequately accommodate the handling, shifting, housing, storing, cleaning, and repairing of the locomotives and cars of such companies as shall be entitled to use the said passenger station and terminal; and also to establish, maintain, and operate the necessary tracks connecting the same with the tracks" of the terminal company.

The act also provides "that any railroad company now or