148 N.Y.S. 1034 | N.Y. App. Div. | 1914
Lead Opinion
Defendant has been held liable under the Federal Employers’ Liability Act of April 22, 1908 (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143), for an injury to plaintiff at Kingsland, N. J., on January 14, 1912, and after the Workmen’s Compensation Law of New Jersey was in force. (See Laws of 1911, chap. 95, as amd. by Laws of 1911, chap. 368.)
Plaintiff had previously worked repairing parts of locomotives, but at this time, and on the day before, he had been assigned to the wheelwright work of attending to the shop 'machines, and of keeping them in repair. These shops at Kingsland were defendant’s general repair shops in Hew Jersey. Often entire locomotives came there; sometimes only parts were sent there to be repaired and returned to the roundhouses. Eepairs at these shops were on any locomotives indiscriminately, regardless of whether they ran in interstate or intrastate traffic.
The remedy by the Federal statute is “to any person suffering injury while he is employed by such carrier in such commerce.” (35 U. S. Stat. at Large, 65, § 1.) These strict limitations are so as not to trench on the rights of the States. Congress can legislate concerning the mutual rights and liabilities of master and servant, when both are actually engaged in interstate commerce. (Employers’ Liability Cases, 207 U. S. 463.)
The employee must be himself engaged in commerce, or his work must be a part of interstate commerce under Federal protection, but this is not his general line of work, but “the particular service in which the employe is engaged.” The test declared by the Supreme Court of the United States is the “nature of the work being done at the time of the injury,” not what the employee expects to do after the completion of his task. (Illinois Cent. R. R. v. Behrens, 233 U. S. 473, 478.)
This plaintiff’s recovery would require us to hold that the general repair shop of á railroad system, which has extensive local train service as well as through traffic ■—■ that the shop itself is an instrumentality of interstate commerce in the sense that a switch, or a bridge, has beeh so j udicially declared. How carefully the courts discriminate is seen as to the crew of a switch engine, which sometimes moves local cars, and again cars carrying freight for points beyond the State, the men working indiscriminately on both kinds of traffic. But these employees are not thereby held to be engaged in interstate commerce; on
A test to decide if an injury to a railroad employee is within the protection of the act is its effect on the course and current of interstate commerce. Was the employee’s relation to traffic so close and direct that his injury tended to stop or delay the movement of a train engaged in interstate commerce ? (Lamphere v. Oregon R. & Nav. Co., 196 Fed. Rep. 336.) It is on this principle that not only the train crew, but an employee repairing its track or switch, is under the protection of the act. And as a bridge, if not kept in suitable condition, may by its defects interrupt commerce, the duty to repair such an instrumentality carries with it the protection of employees so engaged. (Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146.) And one working to repair a refrigerator car (Northern Pac. Ry. Co. v. Maerkl, 198 Fed. Rep. 1), or at a shop, repairing a locomotive that has been in interstate commerce, is held within the statute. (Law v. Illinois Cent. R. Co., 208 Fed. Rep. 869.) But the work of millwrights installing machine tools in a general repair shop is not interstate commerce, even if such tools are capable of use in repair of engines or cars. Many incidents of railroading cannot in any real or substantial sense be interstate commerce. For greater facility to expedite repairs a carrier may operate its own foundry and forges, with warehouses to store axles and carwheels. But the labor in setting up and maintaining such a plant is not thereby made commerce. If a car comes to such a shop those who work on the car may be engaged upon an instrumentality of transportation. The shop machines, however, like the supplies within the paint shop, have not reached the connection with the movement of trains required to bring those so engaged under this act. To hold otherwise would extend the purview of the statute beyond its construction by the Federal courts.
I advise that the judgment and orders be reversed, with a final judgment dismissing the complaint, with costs, but with
Jenks, P. J., Carr and Stapleton, JJ., concurred; Burr, J., read for affirmance.
Since amd. by Laws of 1913, chaps. 145, 174, and Laws of 1914, chap. 244.— [Rep.
Dissenting Opinion
I dissent. The only question is whether plaintiff at the time of his injury was engaged in interstate commerce. The test, so far as plaintiff’s occupation is concerned, has been stated thus: “Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it ? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier ? ” (Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146.)
Plaintiff was a machinist, employed by the defendant at its shops at Kingsland. He testified: “ The work I was engaged in was rush work. These engines would be pulled into Hoboken, and if anything would be wrong they would send the parts to Hoboken, and I would have to get those parts — they would be pulled into the roundhouse and the parts would be sent up to Kingsland to be repaired right away and sent back.” He also testified with regard to “ rush work ” that it “ would be generally on the ones [engines] going out of the State, the others they have got extra engines there to pull them out.” He further testified that he “was the only man on this bench for this class of work.” Among the machines upon which he worked was a shaping machine. “ This machine is used for shaping keys and cotters and brasses for connecting rods.” These keys and cotters were articles used to keep the piston rod in the crosshead of the locomotives.
The facts in immediate connection with the injury are stated in the prevailing opinion. It seems to me .that, within the authorities, if plaintiff had been working upon the shaping machine and had been injured through a defect in it, he could be said to be engaged in interstate commerce. (Pedersen v. Del., Lack. & West. R. R., supra; St. Louis & San Francisco Ry. v. Seale, 229 U. S. 156; Mondou v. New York, New Haven
The fact that this machine was sometimes employed in aid of interstate commerce and sometimes in aid of intrastate com merce would make no difference provided that the act in which plaintiff was engaged was a part of interstate commerce. (Illinois Cent. R. R. v. Behrens, 233 U. S. 473.)
In the Pedersen Case (supra) the plaintiff, acting under direction of his foreman, was carrying from a tool car to a bridge some bolts or rivets which were to be used in repairing the bridge, the repair consisting in taking out an existing girder and inserting a new one. This bridge was used both for interstate and intrastate commerce. It was held that plaintiff was engaged in interstate commerce.
In St. Louis & San Francisco Ry. v. Seale (supra), which was a death case, deceased was employed by defendant as a yard clerk in its yard at North Sherman, and his principal duties were those of examining incoming and outgoing trains making a record of the numbers and initials on the cars and making a record of the seals on car doors, checking the cars with the conductors’ lists, and putting cards or labels on the cars to guide switching crews in breaking up incoming and making up outgoing trains. While so engaged he was struck and fatally injured by a switch engine, which was being negligently operated by a fellow-employee. It was held that plaintiff was engaged in interstate commerce.
Seaboard Air Line v. Moore (supra) was a case of a fireman of a switch engine which apparently never went out of defendant’s yard at Tampa, who was injured by a defective footboard. It appeared that lumber on freight cars was shipped to the terminal of the Tampa Northern road at Tampa, and there unloaded and afterwards shipped by schooner to a point in New Jersey. It was held that he was engaged in interstate commerce.
In Law v. Illinois Cent. R. Co. (supra) a boilermaker’s helper was engaged in assisting in the repair of an engine regularly used in interstate commerce, but which had been in the repair shop for twenty-one days. It was held that plaintiff was engaged in interstate commerce.
In Lamphere v. Oregon R. & Nav. Co. (supra) an engineer was going to relieve another engineer who had been constantly on duty on an interstate train for a period of sixteen hours. Although he had not yet reached the place of his employment, it was held that he was engaged in interstate commerce.
In Darr v. Baltimore & O. R. Co. (197 Fed. Rep. 665) an interstate train has reached the end of its run. Plaintiff, who was employed in making running repairs, was sent to replace a bolt which had been lost from a brake shoe of the tender, and while so employed was injured through the negligence of a fellow-servant. It was held that he was engaged in interstate
In Northern Pac. Ry. Co. v. Maerkl (supra) plaintiff was employed in repair shops connected with an interstate track. He was injured while repairing a car used indiscriminately in interstate and intrastate commerce. It was held, for the purposes of the act, that he was engaged in interstate commerce.
In Eng v. Southern Pac. Co. (supra) it appeared that defendant was engaged both in interstate and intrastate commerce. Plaintiff was injured while framing a new office in a freight shed, and in sawing boards and nailing them to the wall. It was held that he was engaged in interstate commerce, and the court said: “The principle seems to be that one employed at the time of his injury in the use of or maintaining in proper condition any instrumentality or appliance used by the carrier in interstate commerce comes within the statute, although such instrumentality or appliance may also be used for intrastate business,” and it was held that a freight shed was used in interstate commerce.
Again, even if plaintiff in this case had not been operating the machine, but if he had been engaged in repairing it so that it could be used, I think the same principle would apply. On the contrary, if he had heen engaged in the construction of a new machine which had not yet been employed in interstate commerce, probably he would not have been. As was said by the court in Law v. Illinois Cent. R. Co. (supra): “We have not here a case of original construction of an engine not yet become an instrumentality of interstate commerce. It had already been impressed with such use and with such character. Its preservation as such was not a matter of indifference to defendant, so far as its interstate commerce was concerned. ” In the case at bar, the machine by previous use had become an instrumentality of interstate commerce. The mere change of its position was really of the character of a repair to it, or at least of an alteration in it to make it a more effective instrumentality.
In the Lamphere Case (supra) the court, speaking of the injury to plaintiff, said: “What is its effect upon interstate commerce ? Does it have the effect to hinder, delay, or inter
Judgment and orders reversed and final judgment directed dismissing plaintiff’s complaint, with costs, but without prejudice to plaintiff’s remedy under the Workmen’s Compensation Act of the State of New Jersey.
