167 N.E. 458 | NY | 1929
The action is under the Federal Employers' Liability Act, to recover damages for injuries resulting in death.
Joseph Listorti was employed by the defendant, an interstate carrier, in the repair of its roadbed at Knowlesville, New York. His home was at Holley, about fifteen miles away. In order to reach his work on time, he was given a pass on the defendant's line, and was instructed by the foreman to catch a stated train. He was not forbidden in so many words to make use of the trolley between the same points, but, apart from the delay, the extra cost was prohibitive to one working for his slender wage.
On March 4, 1925, Listorti left his home at Holley to *329 go to the defendant's station for the labor of the day. He could have gone there by the public road. Instead, he took a short cut by the defendant's right of way. He climbed the embankment and walked along the tracks. While thus engaged, he was killed in the darkness of the early morning by a freight train which ran against the current of the traffic and struck him from behind. His body, flung or pushed by the impact of the engine, was picked up about thirty feet from the waiting room. It was then opposite a point where he could have boarded a passenger train if one had been at hand. The train that he was to take was not due for several minutes. In brief, at the moment of the impact, he was near the station, but not at it. The admissions of the complaint and the testimony of the witnesses are at one in informing us that he was still walking on the tracks.
We assume in plaintiff's favor that Listorti might be found to have entered upon his employment for the day, which was one in interstate commerce, if he had reached the defendant's station and was there waiting for a train. He traveled in the defendant's cars as a servant, not a passenger. The pass was given him as a facility for the performance of his work (Vick v. N.Y.C. H.R.R.R. Co.,
The difficulty is that Listorti had not reached the station, but was still walking along the tracks, a trespasser on the right of way (Aldredge v. B. O.R.R. Co.,
The judgment should be affirmed with costs.
POUND, CRANE, LEHMAN, KELLOGG and O'BRIEN, JJ., concur; HUBBS, J., not sitting.
Judgment affirmed. *331