228 F. 489 (3rd Cir. 1915), 1970, Erie R. Co. v. Van Buskirk

Docket Nº:1970.
Citation:228 F. 489
Party Name:ERIE R. CO. v. VAN BUSKIRK.
Case Date:December 27, 1915
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 489

228 F. 489 (3rd Cir. 1915)

ERIE R. CO.

v.

VAN BUSKIRK.

No. 1970.

United States Court of Appeals, Third Circuit.

December 27, 1915

Page 490

Collins & Corbin and George S. Hobart, all of Jersey City, N.J., for plaintiff in error.

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

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

BUFFINGTON, Circuit Judge.

In the court below, Mrs. Elmira Van Buskirk, a citizen of New Jersey and administratrix of William Van Buskirk, brought suit and recovered a verdict against the Erie Railroad Company, a citizen of New York, for damages caused, it was alleged, by defendant's negligence. On entry of judgment, defendant sued out this writ.

The action was based on a liability created by the federal Employers' Liability Act which provides:

'Every common carrier by railroad while engaging in commerce between any of the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employe, to his or her personal representative * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier.' 35 Stat. 65.

The underlying question involved in this case is whether at the time of his death William Van Buskirk was so employed in interstate commerce, for if he was not no liability was created by the act. On the trial the court below submitted to the jury the question whether the deceased was so employed, which action is here assigned for error, and it is further alleged the court's duty was to itself hold that the proofs showed the deceased, in doing the act which resulted in his death, was not employed in interstate commerce.

The testimony on behalf of the plaintiff tended to show the Erie Railroad was engaged in both interstate and intrastate transportation of freight and passengers. In aid of such transportation it used a number of switching engines in a terminal yard to shift cars used indiscriminately in interstate and intrastate commerce. The decedent

Page 491

was an engine hostler, whose duty was to coal, sand, water, and do the general hostler work engines required before and after service. Assuming, for present purposes, that one engaged in such work was employed in interstate...

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