Pennsylvania Company v. O'Rourke/Dissent Minton
Mr. Justice MINTON, with whom The CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice CLARK join, dissenting.

There is but one question here, and that is whether this respondent was engaged in 'maritime employment' at the time of his injury. If he was, then the Longshoremen's and Harbor Workers' Compensation Act applies and not the Federal Employers' Liability Act. That was decided in Nogueira v. New York, N.H. & H.R. Co., 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754. In that case, an employee of a railroad company was trucking interstate freight from the dock onto a float for loading in a car standing on the car float. He was likened to a stevedore. Here this railroad employee was a brakeman engaged in removing freight cars from a car float by the use of an ordinary switch engine. The cars were in interstate commerce. Preparatory to the removal of the cars from the car float, it was this railroad employee's duty to let off the brakes. He alleged that while thus engaged, the railroad's use of a defective brake in violation of the Safety Appliance Act caused him to be thrown from the freight car to the deck of the car float and injured. The car float was upon navigable waters.

Was it maritime employment to get these cars off the car float or was it railroad employment? If this railroad employee had been doing his braking job on land, no one would have thought he was engaged in anything but railroad employment. Does it become maritime employment because it happened over navigable waters? We think not. The place is the only thing that differentiates the situations. Place is admittedly not enough to make what is braking on land other than braking when done over navigable waters. Not only must we look to the place where the accident happened, but of equal importance is the nature of the employment. The nature of the employment is certainly not maritime. It was an ordinary railroad chore, done by an ordinary railroad brakeman. If this were not so, the train crews on trains being ferried across navigable streams in the United States would be employed in maritime service. With the imagination of the Court's opinion, a train crew, while crossing a bridge with its supports in a navigable stream, would be employed in maritime service.

We would treat this railroad employee as being in law what he was in real life, a railroad brakeman, engaged in interstate commerce and subject to the Federal Employers' Liability Act, and affirm this judgment. 

Notes