Joseph McKenna

“ We may say of them at once that a precise ruling, one that enables an instant and undisputed application, has not been attempted to be laid down. The test of the employment and the application of the federal Employers' Liability Act (in determining its application we determine between it and the California act) is:
'Was the employe at the time of the injury engaged in interstate transportation or any work so closely related to it as to be practically a part of it?' Shanks v. D., L. & W. R. R. Co., 239 U.S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797. ”

“ In some, the tracks, bridges and roadbed and equipment in actual use, may be said to have definite character and give it to those employed upon them. But equipment out of use, withdrawn for repairs, may or may not partake of that character according to circumstances, and among the circumstances is the time taken for repairs-the duration of the withdrawal from use. Illustrations readily occur. ”

“ And there is no relief from those conditions in the present case and our inquiry necessarily must be whether, considering the facts, the cases that have been decided have tangible concurrence enough to determine the present controversy. ”

“ The facts are not in dispute. It was stipulated that while Burton was drilling and tapping the boiler of the engine a piece of steel lodged in his left eye; that this was in the course of his employment and caused thereby, and occurred while he was performing service growing out of and incidental to the same.
We may assume, though the fact is contested, that the engine was sent from exclusive employment in interstate commerce to the repair shops. ”