The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 440
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272 FEDERAL REPORTER
the rails at a private crossing in order to enable them to haul with teams
over said crossing. Williams was thrown from the hand car by its de-
railment; one of his legs was broken, and finally amputated between
the ankle and knee. He brought suit under the federal employers' lia-
bility statute. 35 Stat. 65, c. 149 (Comp. Sts. 8657). The jury re-
turned a verdict for the plaintiff for $13,750 Upon plaintiff agreeing
that judgment be entered for the sum of $12,000, a motion for a new
trial was denied and judgment for $12,000 was entered in his favor.
At the conclusion of the testimony for the plaintiff a motion was
made to direct a verdict for the defendant, on the ground that plain-
tiff's testimony showed he was not engaged in interstate commerce at
the time he was injured. The court thereupon permitted plaintiff to re-
open his case, and plaintiff thereupon testified that at the time of his
injury he was engaged in his duties of supervision of the construction
and repair forces on said road as roadmaster, and was discharging such
duties at the same time when making said inventory.
The errors assigned are: (1) The refusal to direct a verdict for the
defendant at the close of plaintiff's testimony. (2) Allowing plaintiff
to reopen his case and testify further as to the nature of his employ-
ment at the time of the accident. (3) The refusal to direct a verdict
for the defendant at the close of the entire testimony. (4) The refusal
to give in charge a request of the defendant. (5) The refusal to grant
a new trial.
[1] 1. The defendant having introduced testimony after the refusal
of the court to direct a verdict at the close of the plaintiff's testimony,
no error can be now assigned to such refusal. Chicago, R. I. & P. Ry.
Co. v. Stephens, 218 Fed. 535, 542, 134 C. C. A. 263; International
Lumber Co. v. United States, 231 Fed. 873, 875, 146 C. C. A. 69.
[2] 2. The matter of reopening the testimony was entirely in the
discretion of the court. The defendant had not offered any testimony
at the time, and it is not shown that he was in any wise prejudiced by
the reopening of the case. We therefore find no error in this action of
the court.
[3,] 3. The court did not err in refusing to direct a verdict for the
defendant at the conclusion of the entire testimony, on the ground that
the evidence showed, without conflict, that at the time of the accident
Williams was not engaged in interstate commerce, but in the exclusive
business of taking an inventory of materials lying on the property of
the road, all of which is in the state of Louisiana. Even if it be con-
ceded that, had Williams been exclusively engaged in taking such in-
ventory, he would not have been employed in interstate commerce, in
our opinion, the work of Williams as roadmaster, in supervising the
keeping in repair of said track of said railway engaged in interstate
commerce, constituted an employment by such carrier in interstate com-
merce. Under the testimony of the plaintiff, which was not contradicted,
he was such an employee at the time of his injury, and was so occupied.
Pedersen v. D., L. & W. Ry. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57
L. Ed. 1125, Ann. Cas. 1914C, 153; Southern Ry. Co. v. Puckett, 244
U. S. 571, 37 Sup. Ct. 703, 61 L. Ed. 1321, Ann. Cas. 1918B, 69; Le-
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The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38843/m1/462/: accessed April 23, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.