Erie R. Co. v. Van Buskirk

• Decision Date: 27 December 1915
• Docket Number: 1970.
• Citation: 228 F. 489
• Parties: ERIE R. CO. v. VAN BUSKIRK.
• Court: U.S. Court of Appeals — Third Circuit

228 F. 489

ERIE R. CO. v. VAN BUSKIRK.

No. 1970.

United States Court of Appeals, Third Circuit.

December 27, 1915

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 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 commerce, as contemplated by the act, the fact is that the defendant did not meet his death while doing any act in or about the hostling of an engine. On the contrary, just prior to his death he left engine No. 106, which had come in for hostling and was standing over an ash pit, and walked some 150 feet up the switch track to the place where he was killed. The circumstances were these:

Shortly before, one Krueger, who was a machinist in a nearby machine shop of the railroad, was directed by his foreman to go to the point in question and take a yoke from a disused clam shell bucket and ship it to Bergen. Krueger found the bucket standing against a shanty in such a position that it had to be moved to enable him to remove a pin which held the yoke. Near by stood a Brown hoist or crane. This crane was mounted on a car, which was moved from place to place along the tracks and by means of a clam shell bucket, suspended from a swinging arm, the hoist lifted coal from a coal car and dumped it in the tenders of standing engines. The hoist had steam up at the time, but stood idle on the track about 150 feet from switching engine No. 106. Being unable to move the clam shell from the shanty, Krueger applied to Hancke, the engineer of the hoist, for help. Thereupon Hancke swung round his crane and lowered the clam shell bucket in use on the crane down to the clam shell desired to be moved. Krueger then fastened his clam shell to the hoist's clam shell and directed Hancke to lift it. This Hancke did, but in swinging it around he carried the bucket too far and dropped it on an ash pit track. Thereupon Kreuger had Hancke lift it again, so as to move it from the track. It was while it was being swung around, and while Krueger was steadying it with his hand to prevent it from twisting, decedent came up the track. Krueger testified that, beyond saying 'Good morning' to him, and 'What are you trying to do there?' he made no remark or request to the decedent, and indeed supposed he had gone into the shanty.

Another hostler, Maloney by name, was also injured at the same time and in the same way as decedent. Maloney's account of their employment and of the accident is as follows:

'X-Q. 238. Van Buskirk was what you call an engine hostler? A. An engine hostler. X-Q. 239. He took engines around the yard from time to time? A. Yes. X-Q. 240. And when he did that, didn't he do that under the orders of the yardmaster? A. Sure, from the yardmaster-- got our orders. X-Q. 241. Van Buskirk got his orders from the yardmaster, too, didn't he? A. That's right. X-Q. 242. So that Van Buskirk was under the orders of the yardmaster? A. Under the orders of the yardmaster. * * * X-Q. 246. You and Van Buskirk went to work about what time in the morning? A. Six o'clock in the morning. X-Q. 247. Did you go together? A. Yes, sir. X-Q. 248. And you went to what is called the ash pit, did you not? A. Yes. X-Q. 249. Is that the place where engines are stationed in order to dump the ashes from them? A. Yes, sir. X-Q. 250. Was there an engine on the ash pit when you went there that morning? A. No, sir. X-Q. 251. How long did you stay around the ash pit? A. From 6 o'clock until 20 minutes after 8, up to the time of the accident. X-Q. 252. While you were there did an engine come to the ash pit? A. Yes. X-Q. 253. And stopped there? pit? A. Engineer McDonald. X-Q. 255. Did you see McDonald go away after he brought the engine? A. Yes. X-Q. 256. He left the engine on the pit and went away? A. Yes. X-Q. 257. Did Van Buskirk do anything? A. Van Buskirk got up on the engine after the engineer went away--on 106. X-Q. 258. On what part of the ash pit was the engine at that time? A. About the middle pile. X-Q. 259. How far was that from the Brown hoist? A. About 150 feet, I guess. X-Q. 260. Did you go up on that engine? A. No; I did not. X-Q. 261. Was it any part of your work to go on the engine? A. If he wasn't there, I would go and see how much water there was in the boiler. X-Q. 262. But Van Buskirk was there, and you did not go up? A. Yes. X-Q. 263. Was that engine watered while you were there, before the accident? A. No; it was not watered at

...