by providing compensation for accidental injuries or death suffered in the course of employment within this state."

It takes from the employers in hazardous occupations electing not to provide and pay compensation according to the act, various defenses otherwise allowed by the laws of this state, and provides in section 196 that upon an injury occurring, the arbitrator or committee of arbitration shall make such inquires and investigations as he or they shall deem necessary, and may examine and inspect all books, papers, records, places, or premises relating to the questions in dispute, and hear such proper evidence as the parties may submit, and the hearings before the arbitrator or committee of arbitration shall be held in the vicinity where the injury occurred. The provisions for a personal inspection by the arbitrator or committee of arbitration of the premises relating to the question in dispute was intended to furnish evidence concerning the rights of the parties and could not have been intended to apply to premises beyond the boundaries of the state without an express provision to that effect. That provision, together with the requirement as to the place of the hearing, negatives any intention to make the act effective beyond the boundaries of the state. Section 19g provides that either party may present a certified copy of the decision of the Industrial Commission when no proceedings for review have been taken, or upon a review to the circuit court of the county in which the accident occurred or either of the parties are residents, which confirms the conclusion arising from the title and section 19b.

The Compensation Act has been held, on account of its elective features, to create a contract obligation, but the obligation so created is that the employer will provide and pay compensation according to the provisions of the act, and he does not agree to provide and pay compensation for injuries not included within the act. The Supreme Judicial Court of Massachusetts in the case of In re Gould, 215 Mass. 480, 102 N. E. 693, Ann. Cas. 1914B, 372, in view of the general rule that, in the absence of language to the contrary, it is not to be presumed that statutes are designed to fix the rights of parties beyond the territorial limits of the state, and finding in the language of the Massachusetts statute no intent that it should have extra-territorial effect, held that it did not apply to an injury received out of the state. There have been decisions in other states that compensation is to be awarded for injuries occurring beyond the territoria! limits of the state, but they have been based upon provisions of the acts showing such a legislative intention. The decision of the Supreme Court of Indiana in Hagenback v. Leppert (Ind. App.) 117 N. E. 531, is typical of such cases. The claimant there was a hostler of a circus, and was injured in the course of his employment at Joliet, in this state, and the decision was based on section 20 of the Indiana Workmen's Compensation Act (Laws 1915, c. 106), which is as follows:

"Every employer and employee under this act, except as provided in section 19, shall be bound by the provisions of the act whether injury by accident or death resulting from such injury occurs within the state or in some other state or in a foreign country.'

[2] The decision was within the rule that the act being elective in its nature, every provision of the act became a part of the contract, and the emplover became bound to pay according to the terms of the act. The Workmen's Compensation Act of this state is remedial in its nature, and should be liberally construed to carry out its beneficient object; but there is no provision of the act which can be construed to authorize compensation for an injury occurring outside of the state.

The judgment of the circuit court is reversed, and the cause is remanded, with directions to quash the proceedings of the Board of Arbitration.

Reversed and remanded, with directions.

The test of whether a railroad employee is engaged in interstate commerce, so as to fall within the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), is whether such employee at the time of his injury was engaged in interstate transportation, or in work so closely related to it as to be practically a part of it.

(For other cases, see Commerce, Dec. Dig § 27[5].)

3. COMMERCE INTERSTATE COMMERCE

GAGED IN.

PERSONS EN

The work of repairing the tracks of an interstate railroad is part of interstate commerce, and a track repairer is within protection of federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) when so engaged. (For other cases, see Commerce, Dec. Dig. § 27[8].)

4. COMMERCE INTERSTATE COMMERCE

GAGED IN.

PERSONS EN

A track repairer, while engaged in removing worn rails, which had been laid to the side of the tracks of an interstate railroad when the roadbed was repaired, is engaged in "interstate commerce," within the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665).

(For other cases, see Commerce, Dec. Dig. § 27[8].)

(For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.)

Error to Appellate Court, Second District, on Appeal from Circuit Court, Will County; Arthur W. De Selm, Judge.

Action by Matt Kusturin against the Chicago & Alton Railroad Company. Judgment for plaintiff was affirmed on appeal to the Appellate Court (209 Ill. App. 55), and defendant brings error. Affirmed.

O'Donnell, Donovan & Bray, of Joliet (Winston, Strawn & Shaw, of Chicago of counsel), for plaintiff in error.

Snatt, Heise & Snatt, of Joliet for defendant in error.

STONE, J. This is a writ of error to the Appellate Court for the Second District to review a judgment affirming a judgment of the circuit court of Will county on appeal. The trial court entered judgment in favor of the defendant in error, after requiring a remittitur of $3,321.80 from the amount of $5,821.80.

The declaration consists of two counts. Both counts allege that the plaintiff in error is an interstate carrier, and that the defendant in error was employed by it as a section hand, with other servants, in repairing and maintaining the track and roadway, by removing old and defective

*Decision rendered, Feb. 20, 1919. Rehearing denied, April 2, 1919. 122 N. E. Rep. 512.

steel rails from the track and roadway and replacing the same with other steel rails. The negligence charged in the first count is that other servants and employees carelessly, negligently, and wrongfully caused or permitted a certain heavy piece of steel, commonly called a rail, to strike and fall upon and against the left foot of the defendant in error with great force and violence. The negligence charged in the second count is that, while plaintiff in error's servants were loading old rails upon a flat car, the foreman or vice principal of plaintiff in error carelessly, negligently, and wrongfully caused, directed or permitted the flat car to be loaded with rails in such a manner that by, through, and in consequence thereof a certain heavy piece of steel, commonly called a rail, fell and struck upon and against the left foot of the defendant in error with great force and violence. The plaintiff in error filed a plea of the general issue, and also a special plea denying that it was engaged in interstate commerce, or that the defendant in error at the time of his injury was engaged in interstate commerce.

The accident happened near Rome on November 3, 1915. At that point there were four tracks-two main tracks and two side tracks, the main tracks being in the center. The railroad runs practically north and south. The two outside tracks are known as passing tracks. The space between the main and passing tracks is about 82 feet. The south-bound passing track is about 5 inches lower than the south-bound main track. Both tracks are ballasted; the ballast extending about 2 feet beyond the ends of the ties and sloping gradually to the outside of the passing track. During the two weeks preceding the accident the gang in which the defendant in error worked were engaged in taking out the old rails of the main track, replacing them with new steel, resetting the ties, and surfacing the roadbed. During the forenoon of the day of the accident defendant in error was engaged in tamping the ties and loading the old rails onto a flat car. After noon, when he was hurt, he was helping load onto a flat car some of the old rails that lay in the space between the main and passing tracks. This flat car stood on the south-bound passing track. The particular rails that were being loaded had been lying there about two weeks, opposite the places where they had been taken from the track. There is no evidence that they in any way interfered with the operation of the trains, or as to what was to be done with them after they were loaded on the car. As the old rails were loaded this flat car was "pinched" along, so as to be opposite the next rails to be loaded. The floor of the car was about 4 feet above the rails and about 8 feet wide. The rails were what are called 80-pound rails, but at the time of the accident weighed about 75 pounds to the yard. They were 30 feet in length and weighed about 750 pounds each. In loading a rail the men took their positions side by side along the rail, and at the signal "Up," given by one of the foremen, picked up the rail. At the signal "High" they raised the rail above their heads, and at the signal “Over" they pushed or threw the rail onto the car. At the time of the accident these signals were given, and one end of the rail was thrown too soon, causing it to fall. Defendant in error testified that he tried to jump back with the others when warned of the danger by shouts from all of the men, and in doing so caught his heel on a tie which protruded from the ballast, and the rail fell on his instep and crushed it badly.

It is contended by plaintiff in error that the defendant in error at the time of his injury was not employed in interstate commerce, that the plaintiff in error was not negligent, that the defendant in error assumed the risk, that the verdict is the result of passion and prejudice, that the trial court erred in rulings on the evidence and in instructing the jury, and that the release executed by the defendant in error is a bar to any re

covery.

The action is brought under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. §§ 8657-8665]). The first count of the declaration is based on the averment that both defend

ant in error and plaintiff in error were at the time of the injury engaged in interstate commerce, and that the injury was received through the negligence of fellow servants employed by plaintiff in error. The second count, while charging that both were engaged in interstate commerce, further charges that the injury was received through the negligence of a vice principal of plaintiff in error, to wit, the foreman of the section gang. The record, however, contains no evidence to establish the negligence of the foreman, and the right of recovery of the defendant in error therefore depends in the first instance upon whether or not both employer and employee were engaged in interstate commerce at the time of the injury. It was stipulated that the employer was so engaged, and the first question presented is whether or not the defendant in error was so engaged at the time of the injury. It is urged by plaintiff in error that the work of removing old rails from the right of way was not an act in the work of repairing the road or roadbed used in interstate commerce and that such work was not an act necessarily incident to such repair, and that therefore defendant in error, while so employed, was not engaged in interstate commerce.

[1-4] The law governing the facts of the case considered often presents a close question in this class of cases, and its application to such fact by courts at times seems subtle; but, having in mind that Congress has no power to deal with the question, except under its power to regulate interstate commerce, it will be seen that precision in applying the provisions of the federal Employers' Liability Act is perhaps justifiable. As this is a federal question, the views held by the federal court of last resort are therefore controlling. That court, in the case of New York Central & Hudson River Railroad Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298, states the doctrine underlying this class of cases as follows:

"Each case must be decided in the light of the particular facts with a view of determining whether, at the time of the injury, the employee is engaged in interstate business or in an act which is so directly and immediately connected with such business as subtantially to form a part or a necessary incident thereof."

So in the case of Chicago, Burlington & Quincy Railroad Co. v. Harrington. 241 U. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941, the rule is declared to be:

"It is not important whether he had previously been engaged in interstate commerce, or that it was contemplated that he would be so engaged after his immediate duty had been performed. * * * The true test of employment in such commerce in the sense intended is, was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it"-citing Shanks v. Delaware, Lackawanna & Western Railroad Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797.

The work covered in repairing the track of an interstate road has been held by the federal court to be a part of interstate commerce. In Pedersen v. Delaware, Lackawanna & Western Railroad Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, the court said: "Tracks * * * are as indispensable to interstate commerce as are engines and cars, and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. * We are of opinion that the work of keeping such instrumentalities in a proper state of repair * ** is so closely related to such commerce as to be * a part thereof."

* *

This being the rule in the federal court, the question then arises: Was the work in which defendant in error was engaged at the time of his injury so directly and immediately connected with the repairing of the track of the plaintiff in error or so closely related thereto as to practically form a part of or a necessary incident thereof?

The facts in the Pedersen Case, supra, differ somewhat from the

Vol. III-Comp. 35.

facts in this case, in that in that case the employee was injured while carrying bolts to be used in the work of repairing a bridge which formed part of an interstate road, while in the present case the rails which were being loaded had been taken out of the track, and evidence does not disclose the purpose for which they were being removed from the right of way. The courts of the various states have somewhat differently applied the rules, here referred to, to the facts under consideration in the cases before them. The Court of Appeals of Kentucky, in the case of Illinois Central Railway Co. v. Kelly, 167 Ky. 745, 181 S. W. 375, where a track laborer was injured while loading steel rails onto a flat car, which rails had been removed from the track and lay on the right of way, held that the employee was not at that time employed in interstate commerce, for the reason that the rails along the side of the track could not be regarded as an interference with the road's use of the track or its business as a common carrier and there was nothing to show the intention to use the rails elsewhere. The court there says:

"In view of this situation, we are unable to see how the later work of gathering up these old rails for the purpose of storing them elsewhere, or perhaps, selling them as scrap steel, can in any sense be considered as a repairing of the track, or as necessary to appellant's engaging in interstate commerce."

To the same effect is the case of Cincinnati, New Orleans & Texas Pacific Railway Co. v. Hansford, 173 Ky. 126, 190 S. W. 690, decided by the court under the same rule. The rule was adopted by the Supreme Court of Utah in the case of Perez v. Union Pacific Railway Co., 173 Pac. 236. In that case the employee was one of a certain gang engaged in repairing a track. Some of the men were engaged in taking up old rails and putting in new ones, and while so engaged laid the old rails along the side of the track on the right of way. Plaintiff was a member of the gang engaged in removing these old rails from the point where they had been laid, placing them on a push car and conveying them to a toolhouse. The court held he was not employed, at the time of the injury, in interstate commerce, and held that the crucial test in such case is: "Was he enaged in the interstate business at the particular time of injury?"

That court also held that the employee was not then so engaged, for the reason that he was not at the time engaged in repairing the track, saying:

"The old rails might have lain on the side of the track for an indefinite * * time without inconvenience to interstate travel or transportation."

In the case of Hudson & Manhattan Railroad Co. v. Iorio, 239 Fed. 855, 152 C. C. A. 641, decided by the United States Court of Appeals for the Second Circuit, it was held that Iorio, who was a trackman employed by defendant, and at the time of his injury was assisting in putting new rails into a pit near the tracks, where such new rails were stored against the time when they might be required for track repair, was not at the time of his injury engaged in interstate commerce, for the reason that the rails which he was engaged in storing against a use that was certainly not imminent, and might never occur, were not at the moment engaged in or practically part of interstate commerce

"for that commerce was going on without any present assistance, either from Iorio, or the rails on which he was working, or the men who were working with him. We therefore hold that the actual employment or use at the moment of the injury of the thing upon which the person injured was working is the test of the applicability of the statute, under the circumstances such as shown here. By that test plaintiff below was not practically engaged in or a part of interstate commerce when he was hurt."

On the other hand, the Supreme Court of Minnesota, in the case of