1 F.2d 70 (3rd Cir. 1924), 3026, Erie R. Co. v. Van Buskirk

Docket Nº:3026.
Citation:1 F.2d 70
Party Name:ERIE R. CO. v. VANBUSKIRK.
Case Date:July 10, 1924
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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1 F.2d 70 (3rd Cir. 1924)

ERIE R. CO.

v.

VANBUSKIRK.

No. 3026.

United States 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 VanBuskirk to recover damages under the federal Employers' Liability Act of April 22, 1908 (Comp. St. Secs. 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 VanBuskirk 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 VanBuskirk, 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. VanBuskirk, 228 F. 489, 143 C.C.A. 71, and VanBuskirk v. Erie Railroad Co. (C.C.A.) 279 F. 622) that a detailed restatement would be superfluous. Evidence upon the prior trials was held sufficient to show that the engine under VanBuskirk'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

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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 VanBuskirk 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 VanBuskirk 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...

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