OPINION
BELL, J.
This is a suit brought under the Employer’s Liability Act of Louisiana, Act 120 of 1914, particularly Section 30 thereof, as amended by Act 244 of 1920.
The plaintiff, a member of a gang of laborers employed by the defendant railroad, was injured in the company’s yards at New Orleans while repairs were being made by the company to a switch located within its yards. It is alleged that- on or. about -May 29, 1923, in the course of his. employment, plaintiff, with other employees, was handling heavy timbers; that-these-timbers were' being placed in a position adjacent to the switch and that- while thus engaged plaintiff’s right hand was badly crushed, causing it to be seriously and permanently injured. Recovery is predicated under the Louisiana statute, upon material averments to the effect that the defendant corporation, organized under the . laws of Louisiana and domiciled in Shreveport, Louisiana, is an intrastate common carrier by rail; that in pursuance of its business as such, the building of a switch at the New Orleans terminal of the company is wholly of an intrastate character, in which both the injured employee and his employer (the defendant carrier) were engaged at the time of the injury. It is further alleged that defendant, recognizing plaintiff’s claim for workmen’s compensation under the state statute and amendments thereto, paid to plaintiff, about two months prior to the suit, the sum of $100.00 on account of compensation due him, and that notwithstanding repeated demands for additional compensation defendant has refused to pay what is now due or later may become due under the act.
Defendant » answers by admitting that plaintiff was injured while in its employ at the place and time alleged. It avers that it is an interstate as well as intrastate common carrier by rail, and that as such it was repairing (not building) the switch in question as part of its tracks used constantly and permanently in interstate commerce, and that the work in which plaintiff was engaged when injured was work in the furtherance of interstate commerce. Defendant specifically denies [306]*306that it recognized plaintiff’s claim for compensation under the state statute by paying plaintiff $100.00 as alleged, but that such payment was on the contrary made upon the assumption that plaintiff’s injury occurred while he was engag.ed or employed in relation to interstate commerce and that plaintiff accepted the payment upon that assumption, a fact which he is estopped to deny. It is finally averred that “such payment constitutes a perpetual bar to any claim whatsoever brought by the plaintiff".
There was judgment in favor of plaintiff under the state statute in the amount of weekly compensation as prayed for in the petition, subject to a credit of $100.00 previously paid and for an additional amount in the sum of $250.00 for medical attention, etc., and for costs. Prom this judgment defendant has appealed.
The paramount question for determination is whether plaintiff’s action is controlled by the Employer’s Liability Act of Louisiana, or by the Federal Statute bearing on the same subject matter.
Relative to injuries sustained by railroad employees, the Louisiana Compensation Act (Sec. 30, as amended by Act 244 of 1920) reads as follows:
“That this act shall 'not be construed to apply to any employer acting' as a common carrier while engaged in interstate or foreign commerce by railroad, provided that the employee of such common carrier was injured or killed while so employed; but if the injury or killing of an employee of a railroad occurs while the employer and employee are both engaged and employed at the time in an interstate operation or movement and said movement or operation is not controlled or governed by the laws, rule of liability or method of compensation which has or may be, established by the Congress of the United States, then this act shall govern and compensation shall be recovered thereunder * •
Section 1 of the Acts of Congress of April 22, 1908, Chapter 149, 35 Statutes at Large, 65, provides that:
“Every common carrier by railroad, while engaged in commerce between any of the several states or territories * * * shall be liable for damages to any person suffering injury while he is employed by such carrier in such commerce * *
Where the action was brought under a state statute against a carrier alleged to have been in intrastate commerce at the time and place at which he, as the carrier’s employee, was likewise engaged, the burden of affirmatively establishing these allegations is upon the employee. Philadelphia & Reading R. R. Co. vs. Polk, 256 U. S. 332; St. L. S. F. & Tex. Ry. Co. vs. Seale, 229 U. S. 156; Thaxton vs. L. R. & N. Co., 153 La. 292, 95 South. 773; Dupuis vs. L. R. & N. Co., 155 La. 593, 99 South. 709.
Without discussing in detail the evidence before us, we find from the blue print, showing the switch and main line tracks with which the switch is connected, and from the Company’s Superintendent of Terminals at New Orleans, as well as from the testimony given by plaintiff concerning the general nature of his employment and the work he was performing when injured, that the defendant, as well as plaintiff, were then engaged in commerce, largely, though not exclusively of an interstate character, in that the switch and its connections then undergoing repairs were instrumentalities of interstate commerce so closely allied with interstate traffic as to be part thereof.
We are also of the opinion under the authorities above noted that plaintiff has failed to carry the burden imposed upon him of proving the allegations made in his petition regarding the intrastate character [307]*307of the work or operation obtaining, both as to himself and his employer, at the time of the accident.
The true test for determining whether an employee’s right of recovery arises under the state’s or the Federal Employer’s Liability Act is:
(a) Is the work which was being done by the employee when injured part of or closely related to interstate commerce in which the carrier was then engaged? or
(b) Is the instrument of commerce undergoing repairs habitually used for intrastate commerce?
If, under the facts adduced an affirmative answer can be given to either of these questions the Federal and not the State Act must be applied.
It is an immaterial fact that the carrier’s line of railroad lies entirely within a state or that the place of accident was in the yards at one of its terminals. St. L., S. F. & Tex. Ry. Co. vs. Seale, 229 U. S. 156; La. Ry. & Nav. Co. vs. Williams, 272 Fed. 439; N. Y. C. R. R. vs. Winnfield, 244 U. S. 147.
A careful consideration of the ruling made in Dupuis vs. L. R. & N. Co., 155 La. 954, does not lead us to the conclusion, as argued by counsel for plaintiff, that the Supreme 'Court of this state, in reversing the judgment of the Court of Appeal for the First Circuit, intended to ignore the leading ease of Pedersen vs. D. L. & W. R. R.
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OPINION
BELL, J.
This is a suit brought under the Employer’s Liability Act of Louisiana, Act 120 of 1914, particularly Section 30 thereof, as amended by Act 244 of 1920.
The plaintiff, a member of a gang of laborers employed by the defendant railroad, was injured in the company’s yards at New Orleans while repairs were being made by the company to a switch located within its yards. It is alleged that- on or. about -May 29, 1923, in the course of his. employment, plaintiff, with other employees, was handling heavy timbers; that-these-timbers were' being placed in a position adjacent to the switch and that- while thus engaged plaintiff’s right hand was badly crushed, causing it to be seriously and permanently injured. Recovery is predicated under the Louisiana statute, upon material averments to the effect that the defendant corporation, organized under the . laws of Louisiana and domiciled in Shreveport, Louisiana, is an intrastate common carrier by rail; that in pursuance of its business as such, the building of a switch at the New Orleans terminal of the company is wholly of an intrastate character, in which both the injured employee and his employer (the defendant carrier) were engaged at the time of the injury. It is further alleged that defendant, recognizing plaintiff’s claim for workmen’s compensation under the state statute and amendments thereto, paid to plaintiff, about two months prior to the suit, the sum of $100.00 on account of compensation due him, and that notwithstanding repeated demands for additional compensation defendant has refused to pay what is now due or later may become due under the act.
Defendant » answers by admitting that plaintiff was injured while in its employ at the place and time alleged. It avers that it is an interstate as well as intrastate common carrier by rail, and that as such it was repairing (not building) the switch in question as part of its tracks used constantly and permanently in interstate commerce, and that the work in which plaintiff was engaged when injured was work in the furtherance of interstate commerce. Defendant specifically denies [306]*306that it recognized plaintiff’s claim for compensation under the state statute by paying plaintiff $100.00 as alleged, but that such payment was on the contrary made upon the assumption that plaintiff’s injury occurred while he was engag.ed or employed in relation to interstate commerce and that plaintiff accepted the payment upon that assumption, a fact which he is estopped to deny. It is finally averred that “such payment constitutes a perpetual bar to any claim whatsoever brought by the plaintiff".
There was judgment in favor of plaintiff under the state statute in the amount of weekly compensation as prayed for in the petition, subject to a credit of $100.00 previously paid and for an additional amount in the sum of $250.00 for medical attention, etc., and for costs. Prom this judgment defendant has appealed.
The paramount question for determination is whether plaintiff’s action is controlled by the Employer’s Liability Act of Louisiana, or by the Federal Statute bearing on the same subject matter.
Relative to injuries sustained by railroad employees, the Louisiana Compensation Act (Sec. 30, as amended by Act 244 of 1920) reads as follows:
“That this act shall 'not be construed to apply to any employer acting' as a common carrier while engaged in interstate or foreign commerce by railroad, provided that the employee of such common carrier was injured or killed while so employed; but if the injury or killing of an employee of a railroad occurs while the employer and employee are both engaged and employed at the time in an interstate operation or movement and said movement or operation is not controlled or governed by the laws, rule of liability or method of compensation which has or may be, established by the Congress of the United States, then this act shall govern and compensation shall be recovered thereunder * •
Section 1 of the Acts of Congress of April 22, 1908, Chapter 149, 35 Statutes at Large, 65, provides that:
“Every common carrier by railroad, while engaged in commerce between any of the several states or territories * * * shall be liable for damages to any person suffering injury while he is employed by such carrier in such commerce * *
Where the action was brought under a state statute against a carrier alleged to have been in intrastate commerce at the time and place at which he, as the carrier’s employee, was likewise engaged, the burden of affirmatively establishing these allegations is upon the employee. Philadelphia & Reading R. R. Co. vs. Polk, 256 U. S. 332; St. L. S. F. & Tex. Ry. Co. vs. Seale, 229 U. S. 156; Thaxton vs. L. R. & N. Co., 153 La. 292, 95 South. 773; Dupuis vs. L. R. & N. Co., 155 La. 593, 99 South. 709.
Without discussing in detail the evidence before us, we find from the blue print, showing the switch and main line tracks with which the switch is connected, and from the Company’s Superintendent of Terminals at New Orleans, as well as from the testimony given by plaintiff concerning the general nature of his employment and the work he was performing when injured, that the defendant, as well as plaintiff, were then engaged in commerce, largely, though not exclusively of an interstate character, in that the switch and its connections then undergoing repairs were instrumentalities of interstate commerce so closely allied with interstate traffic as to be part thereof.
We are also of the opinion under the authorities above noted that plaintiff has failed to carry the burden imposed upon him of proving the allegations made in his petition regarding the intrastate character [307]*307of the work or operation obtaining, both as to himself and his employer, at the time of the accident.
The true test for determining whether an employee’s right of recovery arises under the state’s or the Federal Employer’s Liability Act is:
(a) Is the work which was being done by the employee when injured part of or closely related to interstate commerce in which the carrier was then engaged? or
(b) Is the instrument of commerce undergoing repairs habitually used for intrastate commerce?
If, under the facts adduced an affirmative answer can be given to either of these questions the Federal and not the State Act must be applied.
It is an immaterial fact that the carrier’s line of railroad lies entirely within a state or that the place of accident was in the yards at one of its terminals. St. L., S. F. & Tex. Ry. Co. vs. Seale, 229 U. S. 156; La. Ry. & Nav. Co. vs. Williams, 272 Fed. 439; N. Y. C. R. R. vs. Winnfield, 244 U. S. 147.
A careful consideration of the ruling made in Dupuis vs. L. R. & N. Co., 155 La. 954, does not lead us to the conclusion, as argued by counsel for plaintiff, that the Supreme 'Court of this state, in reversing the judgment of the Court of Appeal for the First Circuit, intended to ignore the leading ease of Pedersen vs. D. L. & W. R. R. Co., 229 U. S. 146. In the Dupuis case the Supreme Court noted that the plaintiff’s injuries had been sustained while unloading a car of piling, which was admittedly an interstate shipment hauled by a local train handling only interstate commerce, and that the plaintiff’s immedi- ■ ate employment would have ended with the unloading of the piling. The court held that these facts brought the case within the ruling announced in C. B. & Q. R. R. vs. Harrington, 241 U. S. 177.
In the unsupported case of Thompson vs. L. R. & N. R. R. Co., 9123 of the docket of this court, decided October 1, 1923, and in which the Supreme Court of this state refused a writ (December 5, 1923), we decided, upon the ruling noted in the Pedersen case, that:
“An employee injured while performing his duty as a car-cleaner upon a passenger coach shown by the evidence to. have been used at the time of the accident in interstate commerce cannot recover under the State’s Employers’ Liability Act.”
In Miller vs. M. L. & T. R. R. & S. S. Co., et al., 1 La. App. 1st Adv. Rep.) p. 270, citing our ruling in the Thompson case, we held: “The Employers’ Liability Act of 1914, as amended by Act 244 of 1920, does not apply to an employer acting as a common carrier while engaged wholly or in part in interstate commerce by railroad.”
In Porter vs. Lancaster, Receiver, 2 La. App. 47, the Second Circuit Court of Appeal, on rehearing, reversed its former decree, and upon the authority of the Pedersen case and other cited decisions of the Supreme Court of the United States, held that the state statute does not apply to an employee injured while repairing the track of a railroad engaged in interstate commerce.
In the case of “Louisiana Railway & Navigation Co. vs. Williams, 272 Federal 439”, a decision of the Circuit Court of Appeals for the Fifth Circuit, the plaintiff was a roadmaster injured in supervising some work on the railroad of the Louisiana Railway & Navigation Co. and also making an inventory, of the property and materials on the right-of-way.
[308]*308The Circuit Court of Appeals held that his recovery came under the- Federal Act, saying at page 440:
“The court did not err in refusing to direct a verdict for the defendant at the conclusion of the entire testimony, on the ground that the evidence showed, without conflict, that at the time of the accident Williams was not engaged in interstate commerce, but in the exclusive business of taking an inventory of materials lying on the property of the road, all of which is in the State of Louisiana. Even if it be conceded that, had Williams been exclusively engaged in taking such inventory, he would not have been employed in interstate commerce, in our opinion, the work of Williams as a roadmaster, in supervising the keeping in repair of said track of said railway engaged in interstate commerce, constituted an employment by such carrier in interstate commerce. Under the testimony of the plaintiff, which was not contradicted, he was such an employee at the time of his injury, and was so occupied. Pedersen vs. D. L. & W. Ry. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1940, 153; Southern Ry. Co. vs. Puckett, 244 U. S. 571, 37 Sup. Ct. 703, 61 L. Ed. 1321, Ann. Cas. 1918 B, 69; Lehigh Valley R. R. Co. vs. Barlow, 244 U. S. 183, 37 Sup. Ct. 515, 61 L. Ed. 1070; New York Cent. R. R. Co. vs. Porter, 249 U. S. 168, 39 Sup. Ct. 188, 63 L. Ed. 536; Phila. B. W. R. R. Co. vs. Smith, 250 U. S. 101, 39 Sup. Ct. 396, 63 L. Ed. 869.”
We are convinced that plaintiff’s action in the case at bar is controlled by the Federal Employers’ Liability Act and that he has no right of action under the state’s statute.
It is conceded by counsel for plaintiff that if the Federal Statute controls, then the admitted payment and release regarding the $100.00 already received bars plaintiff from any further recovery for additional compensation.
It is therefore ordered that the judgment appealed from be reversed and that there now be judgment for the defendant, the Louisiana Railway & Navigation Company, dismissing -plaintiff’s suit at his cost in both courts.