Central R. Co. of New Jersey v. Monahan

• Decision Date: 08 March 1926
• Docket Number: No. 205.,205.
• Parties: CENTRAL R. CO. OF NEW JERSEY v. MONAHAN.
• Court: U.S. Court of Appeals — Second Circuit

11 F.2d 212 (1926)

CENTRAL R. CO. OF NEW JERSEY v. MONAHAN.

No. 205.

Circuit Court of Appeals, Second Circuit.

March 8, 1926.

Charles E. Miller, of New York City, for plaintiff in error.

Humphrey J. Lynch, of New York City (Sol Gelb, of White Plains, N. Y., of counsel), for defendant in error.

Before MANTON, HAND, and MACK, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

It appears to us that the case is ruled by Pedersen's Case, 33 S. Ct. 648, 229 U. S. 146, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, and Smith's Case, 39 S. Ct. 396, 250 U. S. 101, 63 L. Ed. 869, so far as concerns the decedent's employment. The only distinction between the case at bar and Pedersen's Case is that Pedersen was fetching a rivet to a bridge on which he was himself working. Any importance that circumstance may be thought to have is met by Smith's Case, in which it was absent. Smith was the cook of a repair gang, and never did work upon the tracks or bridges of any kind whatever. His sole relation to interstate commerce was that he cooked the meals for the gang and lived in the work car with them. It appears to us to be a matter of indifference whether the workman serves his fellows' stomachs with food or their hands with materials.

The defendant especially relies upon Harrington's Case, 36 S. Ct. 517, 241 U. S. 177, 60 L. Ed. 941, in which the injured workman was engaged in carrying coal to bins where it was to be used in interstate and intrastate engines. This case should, however, be read with Collin's Case, 40 S. Ct. 450, 253 U. S. 78, 64 L. Ed. 790, and Szary's Case, 40 S. Ct. 454, 253 U. S. 86, 64 L. Ed. 794. These came up together from this court, and upon an equal division of the judges who decided them. Collins operated a signal tower, and was pumping water to a feed tank by means of a gasoline engine, which caught fire and injured him. After some uncertain language as to how far the employment in the signal tower might color that at the pump, we understand the court, on page 85, meant to declare that the pumping of itself was interstate commerce. Szary had been drying sand for engines, and was engaged in carting away some ashes, when he was struck while pausing to take a drink. As we understand the case, it was thought enough that he was generally engaged in drying sand for interstate and intrastate engines; certainly it was said to be unimportant what the next engine should be that he was to sand. Harrington, on the other hand, had not yet brought his coal to any common reservoir, and this may well be the distinction. If so, Harrington's Case does not apply here, because some of the lumber had actually been laid in place, awaiting the carpenters. In any event, we regard the two later cases as controlling. The cases are full of casuistry, which we would avoid as far as possible. We cannot see any ground for drawing a distinction between a sequence of activities performed by a single man and the same sequence when divided between two.

The supposed errors in the admission of evidence are not substantial. The allowance of two leading questions and of the testimony of Sansone and Cannon call for no more than an allusion. The other rulings sustained objections to questions which called for the opinion of the witnesses. These were probably correct, according to the orthodox American canon,...