Before BIGGS, Chief Judge, and MARIS and GOODRICH, Circuit Judges.
This case involves the application of the Federal Employers' Liability Act*fn1 and its 1939 amendment.*fn2
The plaintiff was injured when a window in the Thirty-Second Street office building of the Pennsylvania Railroad blew in upon her during a storm. She was at the time engaged in her work for the Pennsylvania. Her job was to serve as custodian of the files of master sheets from which blueprints were made. The subject matter of the blueprints was any part of locomotives, freight cars of other things used in the business of railroading. When an order came from some point on the railroad's system asking for a blueprint of one of the tracings in the file, it was plaintiff's task to find the tracing there and take it to the blueprint maker, returning the tracing to the files when the blueprint maker was through with it. There is no substantial dispute on the facts. The sole question involved in the case is whether this plaintiff, when injured during the performance of her duties for the railroad, is within the scope of the Federal Employers' Liability Act and its amendment.*fn3
The language which must be looked at is that of the 1939 amendment to the statute. The history of the original statute of 1906 and its 1908 successor does not need to be discussed at length here. The 1906 act was considered by the Supreme Court to have gone too far and was declared unconstitutional.*fn4 The 1908 statute was designed to meet the constitutional difficulties which the Court had considered in the 1906 act.*fn5 Many cases were decided under the 1908 act. They can be summarized sufficiently accurately for the discussion here by saying that what was required was "on the spot" participation in transportation.*fn6
The 1939 amendment was designed to enlarge the coverage of the act.*fn7 How much did it enlarge it? Mr. T. J. McGrath, General Counsel for the Brotherhood of Railroad Trainmen, said in advocating its adoption:
"Now if this amendment that we propose is put into the act it will, to a very large extent, wipe out the obscurity and the difficulty that now exists in attempting to determine when a man is or is not engaged in interstate commerce. Its application will be confined, of course, to the character of employees now covered by the present act * * *."*fn8
The pertinent language of the amendment, 53 Stat. 1404 (1939), 45 U.S.C.A. § 51, says:
"Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being emplolyed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter."
It is to be noted that the two clauses are in the disjunctive. Each contains language from which one can get out as much as he cares to put in it. Take the word "furtherance," for instance, in the first clause. If one looks up furtherance in the dictionary he finds it is defined as "the act of helping forward," "promotion," "advancement," "progress."*fn9 It is quite clear, is it not, that a literal dictionary application of the word will sweep all employees of interstate railroads into the group covered by the statute. Take the copy writer who is penning an advertisement of the beauties of travel on the Broadway Limited on its trip from New York to Chicago and who suffers injuries when his desk chair collapses. Certainly the very object of his word painting is the promotion of more passenger business for the Pennsylvania on its crack interstate train. The same thing is true, is it not, of the printer who sets up the type or tends the press on the timetables for the Pennsylvania's interstate trains. His product is to help business by telling passengers when to get on trains and when to get off. Yet all this is a far cry from transportation itself;*fn10 as much so as the typist i n the president's office who writes a letter on a railroad matter, or the clerk who makes out the checks for the treasurer to sign.
If "furtherance" means in this statute everything that its dictionary listings include, the second clause of the section is meaningless repetition. The whole field has been covered already. In view of the constitutional difficulties which the legislators found in the "affect" phrase, and the limitations they placed upon it, to be discussed in a moment, it is incredible to conclude that they were intending a scope for the first clause which is as broad as all out of doors. It is much more likely that the second clause is the broader and that "furtherance" was meant to cover those in the actual business of transportation itself*fn11 and the second clause was to cover the fringes.
We come then to the second clause in the amendment which brings in an employee whose duties either "directly" or "closely and substantially" affect interstate commerce.
This language had a very interesting legislative history. The first proposal made in the Senate bill was to have the coverage of every employee whose work "in any way affected" interstate commerce. This was later modified to meet what was at the time thought to be a constitutional difficulty and the "directly" or "closely and substantially" modification appeared in the final bill.*fn12 That a broader reading of the then recently decided Labor Relations Act case would have indicated to the draftsmen that a constitutional difficulty did not exist,*fn13 is immaterial. They did not so interpret it.*fn14 Instead they left to courts the problem of what is "directly" or "closely and substantially".
We need not worry much about the "directly" part of the clause. What is direct is not entirely sun-clear but is much easier to categorize than the ...