Erie R. Co. v. Van Buskirk

• Decision Date: 23 September 1924
• Docket Number: No. 3026.,3026.
• Citation: 1 F.2d 70
• Parties: ERIE R. CO. v. VAN BUSKIRK.
• Court: U.S. Court of Appeals — Third Circuit

1 F.2d 70 (1924)

ERIE R. CO. v. VAN BUSKIRK.

No. 3026.

Circuit Court of Appeals, Third Circuit.

July 10, 1924.

Rehearing Denied September 23, 1924.

Edward A. Markley, of Jersey City, N. J., and George S. Hobart, of Newark, N. J., for plaintiff in error.

Frank F. Davis and John C. Oldmixon, both of New York City, for defendant in error.

Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMPSON, District Judge.

THOMPSON, District Judge.

In this suit there have been three trials by jury, and it is now before this court for the third time upon a writ of error. The suit was brought by the administratrix of the estate of William Van Buskirk to recover damages under the federal Employers' Liability Act of April 22, 1908 (Comp. St. §§ 8657-8665), for the pecuniary loss sustained by her as the widow of the intestate, caused by his death on October 27, 1913, through alleged negligence on the part of the Erie Railroad Company or its servants while Van Buskirk was in its employ as an engine hostler in its terminal yard at Jersey City, N. J. The third trial resulted in a verdict for the plaintiff, and upon the judgment entered upon that verdict a writ of error was sued out by the defendant, plaintiff in error.

The facts relating to the nature of the employment of Van Buskirk, the description of the location, and the manner in which the accident occurred have been so fully stated in the opinions on the prior writs of error (see Erie Railroad Co. v. Van Buskirk, 228 Fed. 489, 143 C. C. A. 71, and Van Buskirk v. Erie Railroad Co. C. C. A. 279 Fed. 622) that a detailed restatement would be superfluous. Evidence upon the prior trials was held sufficient to show that the engine under Van Buskirk's charge as hostler was an instrumentality of interstate commerce, being employed indiscriminately in shifting cars used in interstate and intrastate commerce, and that his employment in taking charge of the shifting engine in the interval between the completion of one day's work and the beginning of another day's work, in taking it to the ash pit to be cleaned of ashes and supplied with coal, and taking it to the respective points for its supply of sand and water, was employment in interstate commerce; and the evidence at the third trial upon those points is substantially identical with that at the former trials.

The main issue on all three trials has been whether there was evidence from which a jury could find that, at the time of the accident through which Van Buskirk met his death, he was employed in interstate commerce or in work so directly and immediately connected with interstate commerce as to form a part thereof. New York Central & Hudson River Railroad Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298. The evidence upon the trial, concerning which there is no dispute, is that Van Buskirk had taken the shifting engine upon the ash pit track for the purpose of having the ashes removed; that the next operation after the cleaning of ashes was to have the engine supplied with coal. This was done by means of a "Brown" hoist. The supply of water and sand was located beyond the end of the "Brown" hoist siding. The "Brown" hoist was at that time engaged in moving a clam shell bucket from a point adjacent to a shanty located near the end of the "Brown" hoist siding and so placing it that it could later be placed upon a flat car for removal to the railroad company's Croxton yards. The work of removing the bucket to the Croxton yard was admittedly not a part of interstate commerce. The "Brown" hoist, which operated upon a siding parallel with and so adjacent to the ash pit track as to enable it to be used in hoisting coal from cars upon a track on the side of the "Brown" hoist siding opposite the ash pit track and dumping it into the engines on the ash pit track, was supplied with a clam shell bucket. To this bucket the employees engaged in moving the bucket to be taken to the Croxton yards attached the latter by means of a chain. When this attachment was made, the bucket to be moved was lifted to a height of about a foot, swung away from the shanty, and lowered to the ground.

The evidence tended to show that, having been lowered to the ground, it was so placed as to obstruct the passage of an engine moving upon the ash pit track; that, upon discovering this fact, the operator of the "Brown" hoist, at the request of the employee having in charge the moving of the bucket, again lifted it for the purpose of moving it away from the obstructed track. There was evidence tending to show that, while this second movement of the "Brown" hoist and the clam shell bucket was taking place, Van Buskirk, having left his engine, came up and said, "What are you trying to do there?" and assisted two other employees, who were on the ground, in steadying the bucket with his hands, while it was being moved to a position which would clear the track. It is uncontradicted that, while the bucket being lifted was still in the air, the bucket of the "Brown" hoist, which was above the other bucket and sufficiently high in the air to be above the heads of the men steadying the lower bucket, suddenly descended, and that Van Buskirk was caught beneath it and killed.

It is contended on the part of the defendant in error that, if the decedent was engaged in that work, and its purpose was to clear the track on which his engine stood, and enable him, after coaling it, to move it to where it would be supplied with sand and water, and thereby to complete his work as hostler in fitting it for further use in interstate commerce, he was engaged, during such employment, within the meaning of the federal Employers' Liability Act, in interstate commerce. This theory of the case was not presented or urged upon either of the previous writs of error. It was, however, raised at the trial now under consideration, and the trial judge under pertinent instructions left the question to the jury.

Charles Henke, a witness for the plaintiff, who operated the "Brown" hoist, testified:

"Q. Now, how far from the ground did you have that second bucket lifted when it was at its highest point? A. Oh, I dare say no more than a foot at any time.

Q. And then what happened to that bucket, if anything, while it was that high in the air? A. Why, as I say, I swung it over near the ash pit track.

"Q. Yes. A. (continued) And lowered it for him there, and he said the bucket was too close.

"Q. Yes. A. So I had to pick it up once more.

"Q. Now, just a minute. Pardon me for interrupting you, Mr. Henke. You took it up in the air, and then where did you lower it, Mr. Henke? In other words, how far did you move it before you lowered it? A. Why, I moved it very near to the ash pit track.

"Q. Well, then that would be somewhere in the neighborhood of where my pencil is (indicating)? A. Yes.

"Q. So it would be a swing of about how many feet before you let it down again? A. Oh, probably 8 feet.

"Q. Did it, at any time, when you let it down, after first raising it, get upon the ash pit track? A. Well, it got so close to it that we were afraid an engine wouldn't pass.

"Q. That means to the first rail that you would come to? A. Yes.

"Q. And then what was the next operation, when you found that it seemed to be too close to that track? A. He requested me to raise it once more, in order to swing it a little further away.

"Q. Yes; that meant swinging it beyond the ash pit track, or back toward the shanty? A. Back toward the shanty."

Fred H. Kruger, a witness for the defendant, who had charge of the moving of the bucket to the Croxton yard, testified:

"Q. Now, then, as I understand it, the buckets were lifted in the air, then, weren't they? A. Yes, sir.

"Q. And where were they put the first time they were lifted from the position near the shanty? A. I asked Henke to lift it up and bring it over a bit.

"Q. Well, did he do that? A. He done that.

"Q. Now, where did the bucket come down? A. Then I told him to lower, and he put them too close to that ash pit track.

"Q. Then they came down near the ash pit track? A. Yes, sir.

"Q. The bucket was not between the rails of the ash pit track? A. No, sir. * * *

"Q. And then what happened? What was done next? A. I asked him to lift up again, to push her a little more north, so the locomotive could have clearance to pass.

"Q. Yes. A. Which he done.

"Q. And it was while he was doing that movement...