Bezue v. New York, N.H.&H.R. Co.

• Decision Date: 02 June 1931
• Citation: 256 N.Y. 427,176 N.E. 828
• Court: New York Court of Appeals Court of Appeals
• Parties: BEZUE v. NEW YORK, N. H. & H. R. CO.

256 N.Y. 427

176 N.E. 828

BEZUE

v.NEW YORK, N. H. & H. R. CO.

Court of Appeals of New York.

June 2, 1931.

Action by Clarence Bezue against the New York, New Haven & Hartford Railroad Company. Judgment for plaintiff entered upon a verdict of jury in the amount of $60,000 was modified by the Appellate Division (232 App. Div. 840, 248 N. Y. S. 926), by reducing it to $50,000 and affirming it for that amount, and defendant appeals.

Affirmed.

O'BRIEN and KELLOGG, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Second department.

John M. Gibbons and E. R. Brumley, both of New York City, for appellant.

Thomas J. O'Neill, of New York City, and Charles D. Lewis, of White Plains, for respondent.

HUBBS, J.

This is an action to recover damages growing out of injuries received by the respondent while in the service of the appellant. The action is under the Federal Employers' Liability Act (Act of April 22, 1908, 35 Stat. at L. 65, c. 149, as amended by Act of April 5, 1910, 36 Stat. at L. 291, c. 143 [45 USCA §§ 51-59]).

The respondent at the time in question was employed by the appellant as a member of an unskilled labor gang at appellant's maintenance roundhouse and engine terminal at Maybrook, N. Y. Part of the time he operated a small portable electric truck with a crane. He also assisted in general maintenance work, oiled locomotives, filled grease boxes, assisted in adjusting couplers, brakeshoes, pressure tanks, rolling wheels, and in all other work required of an unskilled laborer in and about the roundhouse. He also cleaned windows, operated coal pockets, dumped coal, and did whatever work of that nature he was called upon to do. Some of the jobs which he was directed to do would take only a few minutes, others a few hours. He was continually moved from one kind of work to another. He did whatever he was directed to do by his superior.

Nearly all locomotives which ran in and out of the roundhouse were used exclusively in interstate commerce, although a few locomotives which were not so used were brought in there for minor repairs. All locomotives underwent a boiler wash every thirty days. That work was done at the roundhouse and at the same time they were inspected and minor repairs made. The roundhouse was not used for the purpose of making extensive repairs.

On August 23, 1929, locomotive No. 3221 arrived at the roundhouse. It was a locomotive used exclusively in interstate commerce. Between the date of its arrival and September 2d, its boiler was washed and certain repairs were made on it. In doing that work it was necessary to remove two driving wheels. On the latter date, the respondent was called upon to help move the wheels by hand from a certain lathe to the engine. While engaged with other workmen in rolling one of the wheels, he was injured by being caught under the wheel which tipped over while being moved. He had been engaged in that particular work, part of the time, for about two hours before he was injured.

The sole question presented upon this appeal is: Was the respondent engaged in interstate commerce at the time and place of the accident or in work so closely related to it as to be practically a part of it?

The roundhouse is an essential part of the railroad's system, necessary in the operation of the road, and in carrying on interstate commerce. It is part of the plant required in keeping the locomotives in repair and in a proper condition to operate successfully in interstate commerce. The fact that some work is done on locomotives engaged in intrastate commerce, does not deprive it of its character as an essential instrumentality of interstate commerce any more than the running of intrastate trains over the roadbed of the appellant's road deprives it of its character as a track used in interstate commerce.

The respondent was engaged in a plant service. He worked indiscriminately upon engines engaged in interstate or intrastate commerce. He also did work necessary to keep the plant in proper order and condition to carry on the work. Employees engaged in keeping tracks, bridges, ash pits, and boilers which are used in both kinds of commerce in proper order and condition to maintain their effectiveness are engaged in each of them, are covered by the act, and it matters not that at the moment of injury an employee was temporarily at work on a locomotive or some other instrumentality not engaged at the time in interstate commerce. Erie R. R. Co. v. Collins, 253 U. S. 77, 82, 40 S. Ct. 450, 452, 64 L. Ed. 790;Pedersen v. Delaware, L. & W. R. R. Co., 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153;Grybowski v. Erie R. R. Co., 88 N. J. Law, 1, 95 A. 764; affirmed 89 N. J. Law, 361, 98 A. 1085;Illonardo v. Erie R. R. Co., 103 N. J. Law, 4, 135 A. 77; affirmed 103 N. J. Law, 698, 137 A. 917;Lindstrom v. New York Cent. R. R. Co., 186 App. Div. 429, 174 N. Y. S. 224; affirmed 230 N. Y. 551, 130 N. E. 890;Salvo v. New York C. R. R. Co., 216 App. Div. 592, 215 N. Y. S. 645;Oglesby v. St. Louis-San Francisco R. Co., 318 Mo. 79, 1 S.W.(2d) 172; certiorari denied, 277 U. S. 587, 48 S. Ct. 434, 72 L. Ed. 1001.

In Shanks v. Delaware, L. & W. R. R. Co., 239 U. S. 556, 558, 36 S. Ct. 188, 189, 60 L. Ed. 436, L. R. A. 1916C, 797, the Supreme Court stated the general rule for determining when an employee is engaged in interstate commerce within the meaning of the act: ‘Having in mind the natrue and usual course of the business to which the act relates and the evident purpose of Congress in adopting the act, we think it speaks of interstate commerce, not in a technical leagl sense, but in a practical one better suited to the occasion, * * * and that the true test of employment in such commerce in the sense intended is, Was the employee, at the time of the injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?’ Within the principle stated the respondent was at the time of his injury ‘engaged in interstate transportation or in work so closely related to it as to be practically a part of it.’ New York Cent. R. R. Co. v. Marcone, 281 U. S. 345, 50 S. Ct. 294, 74 L. Ed. 892;Erie R. R. Co. v. Szary, 253 U. S. 86, 40 S. Ct. 454, 64 L. Ed. 794;Matter of Guida v. Pennsylvania R. Co., 183 App. Div. 822, 171 N. Y. S. 285, affirmed 224 N. Y. 712, 121 N. E. 871;Hiser v. Davis, 234 N. Y. 300, 137 N. e. 596.

Unless the act is given practical construction, the condition of injured unskilled employees engaged in work which changes at short intervals would be extremely unsatisfactory. At one moment such an employee might be engaged in working on a locomotive engaged in interstate transportation and immediately thereafter employed on one engaged in intrastate transportation.

If required to determine, in case of injury, whether to proceed under the Federal act or the State Workmen's Compensation Act (Consol. Laws, c. 67), there would be danger that when he proceeded under one he would lose his rights under the other and if mistaken in proceeding under one act, all right to recover for the injury might be lost, as the time to proceed under the other might meanwhile have expired. ‘A rather abrupt transition it would seem at first blush.’ Erie R. R. Co. v. Collins, supra.

In that case the court explained and distinguished the cases in the United States Supreme Court which have been cited as sustaining the contention that the nature of the work being done at the very time of the accident is the determining factor.

We have reached the conclusion that the maintenance roundhouse was a necessary part of the appellant's plant, essential in its business of carrying on interstate commerce, that the maintenance and operation of the round-house was in aid of such commerce, and that the work of the respondent was so...