198 A.D. 423 | N.Y. App. Div. | 1921
The plaintiff has recovered a verdict under the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143) for injuries received while working at a turntable of the Rutland Railroad Company at Malone, N. Y. He claims to have received the injuries because of the negligence of the said company. The Rutland Railroad Company was engaged in interstate commerce between the States of New York and Vermont. For the plaintiff to sustain his judgment it is necessary for him to establish that he also at the time of his injury was engaged in interstate commerce as an employee of the railroad company.
At the time of the accident there had been and was a turntable in constant use as an instrumentality of interstate commerce. Engines operating in both States were daily driven onto this turntable which was operated in connection with their ordinary and general use.
The turntable was seventy feet in diameter. At the time of the accident it was being enlarged to ninety feet in diameter. An excavation ten feet wide and eight feet deep was being made around the circumference of the old structure. A concrete wall was constructed around the outer edge of this enlarged excavation. The work of excavation and concrete construction was being made in sections. Plaintiff was removing the excavated dirt with a wheelbarrow when he received his injuries. Twelve or thirteen men were employed in the work. It extended over a period exceeding one month. The old table, which weighed about eighty tons, was to be replaced by a new one weighing about one hundred tons. Everything was to be removed from the center of the pit. The pit itself was substantially all that would be left. The
Did the work being done as above described constitute repairs to the old turntable or was it the construction of a new one? On the answer to this question depends the plaintiff’s right to recover. (Pedersen v. Delaware, L. & W. R. R., 229 U. S. 146.) In Raymond v. Chicago, Milwaukee & St. Paul R. Co. (243 U. S. 43) the plaintiff was injured while working in a tunnel which was only partially bored and it was held that he was not entitled to recover because the tunnel was not yet in use as an instrumentality of interstate commerce.
In New York Central R. R. Co. v. White (243 U. S. 188) it was held as follows: “ The admitted fact that the new station and tracks were designed for use, when finished, in interstate commerce does not bring the case within the Federal act. * * * Decedent’s work bore no direct relation to interstate transportation, and had to do solely with construction work, which is clearly distinguishable, as was pointed out in Pedersen v. Delaware, Lackawanna & Western R. R. Co., 229 U. S. 146.”
In Kinzell v. Chicago, Milwaukee & St. Paul R. Co. (250 U. S. 130) the plaintiff was injured while engaged in the work of constructing an earthen fill to take the place of a wooden trestle over which interstate trains were passing at the time of the accident. The Supreme Court of Idaho (31 Idaho, 365) held “ that constructing a fill to take the place of a trestle which is being used in interstate commerce is new construction, and that the fill does not become part of the railroad until it is completed and the track is placed upon it instead of upon the trestle.” The United States Supreme Court reversed the Idaho Supreme Court on the ground that at the time of the accident the fill had proceeded to such an extent that the newly placed earth interfered with the tracks on which interstate trains were passing and that the work of the plaintiff was to keep the tracks free from such obstruction. On that ground it was held that the plaintiff was engaged in interstate commerce, but there was no criticism of the determination of the State court that the construction of the fill to take the place of the trestle was new construction and to that extent was not interstate commerce work.
The judgment and order should be reversed and complaint dismissed, with costs.
John M. Kellogg, P. J., H. T. Kellogg and Kiley, J., concur; Van Kirk, J., not sitting.
Judgment and order reversed and complaint dismissed, with costs.