279 F. 622 (3rd Cir. 1922), 2750, Van Buskirk v. Erie R. Co.

Docket Nº:2750.
Citation:279 F. 622
Case Date:March 06, 1922
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 622

279 F. 622 (3rd Cir. 1922)




No. 2750.

United States Court of Appeals, Third Circuit.

March 6, 1922

Frank F. Davis, of New York City, for plaintiff in error.

Collins & Corbin, of Newark, N.J. (George S. Hobart, of Newark, N.J., of counsel), for defendant in error.

Before WOOLLEY and DAVIS, Circuit Judges, and THOMPSON, District judge.

DAVIS, Circuit Judge.

Elmira Van Buskirk brought this action under the federal Employers' Liability Act (Comp. St. Secs. 8657-8665) to recover damages for the death of her husband, William Van Buskirk, occasioned by negligence of the Erie Railroad Company, his employer. The case has been tried twice. At the first trial the plaintiff had a verdict, but the judgment was reversed by this court on writ of error, upon a finding, as matter of law, that the decedent was not employed in interstate commerce at the time he was killed. 228 F. 489. On error to the Supreme Court the writ was dismissed for want of jurisdiction. 248 U.S. 549, 39 Sup.Ct. 183, 63 L.Ed. 416. At the second trial, the court, viewing the facts as substantially the same as those of the first trial, and regarding itself bound by the decision of

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this court as the law of the case, directed a verdict for the defendant. Thereupon the plaintiff sued out this writ of error.

The facts at both trials were in the main the same, and were practically undisputed. In order, however, to withdraw herself from under the law of the case as declared by this court on the first writ of error, the plaintiff maintains that there was one matter which distinguished the two trials, and which permitted them to be conducted on different principles of law. We shall therefore review the second trial, not under the law of the case as declared on the first writ of error, but on the theory under which it was conducted. For the main facts of the case on the second trial we refer to the statement of facts on the first trial made in the opinion of this court reported at 228 F. 489. We shall repeat only enough of the facts to show the distinction between the two trials which the plaintiff urges, and to disclose the grounds for our decision on this writ of error.

Van Buskirk was employed by the defendant as an engine hostler in its terminal yard at Jersey City. His work consisted in supervising the cleaning, coaling, watering, and sanding of engines after they had completed a day's work and before starting on another. The engines were cleaned at an ash pit, and were watered, sanded, and coaled at different places. Coaling was done by a hoist, called a Brown hoist. This hoist was equipped with a crane and a clam-shell bucket, and moved by its own power from place to place, where coal was to be transferred from coal cars to engine tenders. On the day in question a switching engine, engaged in moving cars used indiscriminately in interstate and intrastate commerce, was brought to the ash pit and turned over to Van Buskirk for preparation for further work.

This case was tried before apparently on the theory that Van Buskirk was engaged with several other men in removing a heavy iron bucket from its position against a shanty about 150 feet from the ash pit, preparatory to shipping it or one of its parts to the Bergen yard, about a mile distant. Miles Maloney, who was on the west side of the bucket, testified at the first trial that he saw Van Buskirk go on the other or east side of the bucket, and about that time he (Maloney) began to shove the bucket:

'Q. Had you ever seen him have anything to do with the Brown hoist bucket? A. No; I didn't see him. I seen him under it.

'Q. When you saw Van Buskirk by the bucket, was that when the engine was being coaled? A. Yes, sir.

'Q. Had you ever seen him have anything to do with running the bucket or operating the machine? A. He done it of his own accord. I see him going up there.

'Q. On the bucket? A. No; but on the machinery that ran it.

'Q. Was that while you were...

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