250 N.Y. 345 | NY | 1929
The action is under the Federal Employers’ Liability Act to recover damages for negligence resulting in death.
Carey, an engineer in the service of defendant, was taking a string of coopered cars from the defendant’s yard in Buffalo to another yard or junction. The cars were to be sent from the junction to the Buffalo grain elevators, where they were to be held in readiness for expected orders for the movement of grain. In switching the cars at the junction from the main track to a side one, Carey was killed. The question is whether he was engaged, when injured, in interstate commerce.
Buffalo is one of the great grain ports of the world. The grain that comes there through the Great Lakes is transferred into elevators until forwarded beyond.
On June 9, 1927, at 3:45 p. m., the Pennsylvania agent at Burroughs Lot telephoned to the defendant for ten coopered cars. No orders had then been received for the shipment of grain over the defendant’s line. The agent, instructed by experience, believed that orders would come in, and wished to have the cars at hand in order to avoid delay. They were surplus equipment in
We have said that no orders had come in when the ten cars were requested of the defendant in anticipation of approaching needs. Some orders did come in, however, later in the day, one for a shipment from an elevator to Fairton, New Jersey, the other for a shipment to Batavia, New York. Since the cars were not collected till after 8 p. m., the inference is not unreasonable that before they left the yard, the two orders had been received by the agent at Burroughs Lot. The grain billed to Fairton, New Jersey, was placed the same day on the car already at the elevator. The grain destined for Batavia was placed on one of the eight cars arriving on June 10, two cars, it will be recalled, having been disabled on the way. The record does not tell us to whom this grain belonged, or how long it had been in storage before being loaded at the yard. After the shipment to Batavia, there remained seven of the defendant’s cars, which moved at later dates. One, loaded on June 11, was billed to the Buffalo Flour Mills, at Buffalo, New York. The other six were loaded with grain belonging to B. F. Schwartz & Co., and were billed on June 14, some to New York city, and some to Weehawken, New Jersey. Schwartz <& Company became the owners of this grain on June 9 while it was in transit on the Lakes, and gave orders for its reshipment on its delivery at the port.
The disposition of the cars has now been traced from the time of their arrival at the Pennsylvania yard. The question is still unanswered whether in their movement to that yard they were in interstate or local commerce. For this there is need that other data be before us. Contracts
This analysis of the functions of terminal elevators' at Buffalo and elsewhere destroys the basis for the statement that the ten coopered cars when on their way to Burroughs Lot had been allocated by the defendant to the service of interstate commerce. Their use was dependent upon needs unknown and unknowable. In saying this we assume that grain shipped over the Lakes to be reshipped at Buffalo is in interstate commerce while awaiting transfer at an elevator. We assume too that cars allocated to the carriage of grain in course of transfer are in interstate commerce during the preliminary movement from
Cases such as Stafford v. Wallace (258 U. S. 495) and Lemke v. Farmers Grain Co. (258 U. S. 50) are pressed upon us as sustaining the conclusion that the preliminary movement is subject to the Federal statute if, by reason of the general character of the business, there is a strong preponderance of probability that the later movement will be one in interstate commerce, even though the outcome may show it to be a movement in another field. The silence of the record as to the extent of deliveries for storage in comparison with those for transfer makes it impossible for us to say how strong the preponderance is, if indeed there is preponderance at all. But what was said in the cases cited has not modified the rule that an employee is within the protection of the Federal statute or without it according to the particular work that he is doing at the moment of the injury (Shanks v. D., L. & W. R. R. Co., 239 U. S. 556). To switch coal cars to a bin where fuel will be conveniently at hand for any engine that may need it, is not a service within the statute, though interstate as well as local traffic will be helped by what is done (Chicago, B. & Q. R. R. Co. v. Harring
We have said that Stafford v. Wallace and Lemke v. Farmers Grain Co. (supra) have not modified the rule that the particular service, and not the general character of the business, is the test of interstate commerce in the application of the ’ statute. The first (Stafford v. Wallace) had to do with the validity of an act of Congress, the Packers and Stockyards Act of 1921 (42 Stat. 159), providing for the supervision by Federal authorities of the business of the commission men and five stock dealers in the great stockyards of the country. The court held that so much of the business was interstate as to justify regulation of the business in its entirety, even though a good deal of it was intrastate or local. The rationale of the ruling was explained with great clarity by Taft, Ch. J., writing for the court, in Atlantic Coast Line R. R. Co. v. Standard Oil Co. of Kentucky (supra, at p. 272). The second case, Lemke v. Farmers Grain Co., supra (followed in Shafer v. Farmers Grain Co., supra), was concerned with the validity of an act of North Dakota, laying restrictions upon grain elevators doing business in that State. The court held that so much of the business was interstate — 90% interstate and 10% local (268 U. S. at p. 192) — as to make the effect of the restrictions an unreasonable burden on interstate transactions.
The judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.
Pound, Crane, Lehman, Kellogg and O’Brien, JJ., concur; Hubbs, J., not sitting.
Judgments reversed, etc.