Argument for Defendant in Error. 229 U. S. PEDERSEN v. DELAWARE, LACKAWANNA & WESTERN RAILROAD COMPANY. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 698. Argued January 14, 1913.-Decided May 26, 1913. Under the Employers' Liability Act a right of recovery exists only where the injury is suffered while the carrier is engaged in interstate commerce and while the employé is employed in such commerce; but it is not essential that the co-employé causing the injury be also employed in such commerce. One engaged in the work of maintaining tracks, bridges, engines or cars in proper condition after they have become and during their use as instrumentalities of interstate commerce, is engaged in interstate commerce, and this even if those instrumentalities are used in both interstate and intrastate commerce. One carrying materials to be used in repairing an instrumentality of interstate commerce is engaged in such commerce; and so held, that a railroad employé carrying bolts to be used in repairing an interstate railroad and who was injured by an interstate train is entitled to sue under the Employers' Liability Act of 1908. A Federal court is without authority to reverse a judgment in favor of one party and direct a judgment in favor of the other non obstante veredicto. Slocum v. New York Life Ins. Co., 228 U. S. 364. 197 Fed. Rep. 537, reversed. THE facts, which involve the construction of the Employers' Liability Act of 1908 and the determination of what constitutes being engaged in interstate commerce, are stated in the opinion. Mr. Benjamin Patterson, with whom Mr. George Bell was on the brief, for plaintiff in error. Mr. James F. Campbell, with whom Mr. William S. Jenney was on the brief, for defendant in error: 223 U. S. Argument for Defendant in Error. An attempt is made in this case to stretch to the utmost limit the scope of the Federal Employers' Liability Act as to what employés of a railroad company are entitled to its benefits. The injured employé had nothing at all to do with transportation, but was merely a helper in and about the building of new bridges or the repair of old ones; he had nothing to do with the operation of trains, the repair or maintenance of track or cars or anything in connection with intercourse between the States. If this employé comes within the terms of the act then practically every other employé of a railroad does, no matter how remote their services may be in connection with interstate commerce. One of the chief objections to the act of 1906, which was declared unconstitutional in the Employers' Liability Cases, 207 U. S. 463, 498, was that it included employés who were not actually employed in interstate commerce. There was nothing real or substantial in plaintiff in error's employment in connection with interstate commerce that would include him within the terms of the act. He had nothing whatever to do with operation of trains; nor with anything in connection with intercourse or traffic; nor with tracks, roadbed or the other instrumentalities of commerce. He was a laborer in and about the construction of a new bridge or carrying supplies that were to be used in the repair or remodeling of an old one. The mere fact that he was using the railroad track as a path to go to or from his work certainly would not make him engaged in commerce, or the fact that his carrying bolts or rivets which were to be used in the construction of a railroad bridge, give him any real or substantial connection with interstate commerce, traffic or intercourse. Commerce is a term of the largest import, Welton v. Missouri, 91 U. S. 275; P. & R. R. Co. v. Pennsylvania, 15 Wall, Argument for Defendant in Error. 229 U. S. 232; New York v. Miln, 11 Pet. 102; Kidd v. Pearson, 128 U. S. 1, 20; Judson on Interstate Commerce, §§ 6, 7; 7 Cyc. 413; but giving the words their proper construction means that the employé must be engaged in commerce; that is, traffic or intercourse between the States, and that an employé not engaged in transportation, traffic or intercourse between the States is not engaged in such commerce. Congress has power under the commerce clause to regulate the instrumentalities of commerce, but if Congress meant to take care of employés not engaged in traffic or commerce, but simply about the instrumentalities of commerce, it would so have said. Hooper v. California, 155 U. S. 648; Williams v. Fears, 179 U. S. 270. The distinction, therefore, is between acts of commerce and subjects of commerce which include anything that may be transported and the instrumentalities thereof. The plaintiff was engaged about some construction work, that is, manufacturing something new, although it is true such creation or result was afterwards to be used as a means whereby interstate commerce was to be carried on. These acts are not such interstate commerce as is contemplated by the statute. United States v. Knight, 156 U. S. 1; Int. Com. Comm. v. Detroit &c. R. Co., 167 U. S. 633; Penn. R. R. v. Knight, 192 U. S. 21. If plaintiff in error was engaged in interstate commerce, then the man chopping down trees in the forest in order to make railroad ties is equally employed in interstate commerce, and even the miner working in mines to furnish the railroad with coal, which is to be used on its interstate engines, is so engaged. Southern Ry. Co. v. United States, 222 U. S. 20, does not apply. For cases in the Federal courts deciding what employés come under the act, see Taylor v. Southern Ry. Co., 178 Fed. Rep. 380; Johnson v. Gt. Nor. Ry. Co., 178 Fed. Rep. 643; Zikos v. Oregon Nav. Co., 179 Fed. Rep. 893; Colasurdo v. Cent. R. R. of N. J., 180 Fed. Rep. 832, aff'd 192 Fed. Rep. 901; Van Brimmer v. Tex. & Pac. Ry. Co., 190 Fed. Rep. 394; Behrens v. Ill. Cent. R. R. Co., 192 Fed. Rep. 581; Lamphere v. Oregon Nav. Co., 196 Fed. Rep. 336; Bennett v. Lehigh Valley R. R. Co., 197 Fed. Rep. 578; Heimbach v. Lehigh Valley R. R. Co., 197 Fed. Rep. 579; Feaster v. Phila. & Read. Ry. Co., 197 Fed. Rep. 580; Nor. Pac. Ry. Co. v. Maerkl, 198 Fed. Rep. 1. In every one of these cases where a recovery was allowed under the act, the railroad employé had some direct connection with interstate commerce, either as part of a crew upon a train engaged in interstate commerce, or about the tracks and switches which were in active use in conducting interstate commerce, but in the case at bar the employé was engaged merely in duties tending towards the manufacturing of something which was afterwards to be used in interstate commerce and therefore his connection is entirely too remote to be covered by the act. MR. JUSTICE Van Devanter delivered the opinion of the court. This was an action under the Employers' Liability Act of April 22, 1908, 35 Stat. 65, c. 149, to recover for personal injuries sustained by the plaintiff through the negligence of a co-employé while both were in the defendant's service. At the trial the Circuit Court refused to direct a verdict in the defendant's favor, and the jury returned a verdict for the plaintiff, assessing his damages at $6,190. Subsequently the court, following a local statute (Penn. Laws, 1905, p. 286, c. 198), entered judgment for the defendant notwithstanding the verdict, on the ground that the latter was not sustained by the evidence. 184 Fed. Rep. 737. The judgment was affirmed 1 The act and the amendment of April 5, 1910, are printed in full in 223 U. S., p. 6. by the Circuit Court of Appeals, 197 Fed. Rep. 537, and the plaintiff sued out this writ of error. The evidence, in that view of it which must be taken here, was to the following effect: The defendant was operating a railroad for the transportation of passengers and freight in interstate and intrastate commerce, and the plaintiff was an iron worker employed by the defendant in the alteration and repair of some of its bridges and tracks at or near Hoboken, New Jersey. On the afternoon of his injury the plaintiff and another employé, acting under the direction of their foreman, were carrying from a tool car to a bridge, known as the Duffield bridge, some bolts or rivets which were to be used by them that night or very early the next morning in "repairing that bridge," the repair to consist in taking out an existing girder and inserting a new one. The bridge could be reached only by passing over an intervening temporary bridge at James Avenue. These bridges were being regularly used in both interstate and intrastate commerce. While the plaintiff was carrying a sack of bolts or rivets over the James Avenue bridge, on his way to the Duffield bridge, he was run down and injured by an intrastate passenger train, of the approach of which its engineer negligently failed to give any warning. The Circuit Court ruled that an injury resulting from the negligence of a co-employé engaged in intrastate commerce was not within the terms of the Federal act, and the Circuit Court of Appeals, although disapproving that ruling, held that under the evidence it could not be said that the plaintiff was employed in interstate commerce and therefore he was not entitled to recover under the act. Considering the terms of the statute, there can be no doubt that a right of recovery thereunder arises only where the injury is suffered while the carrier is engaged in interstate commerce and while the employé is employed by the carrier in such commerce; but it is not essential, |