Delaware, L. & W.R. Co. v. Busse

• Decision Date: 14 January 1920
• Docket Number: 58.
• Court: U.S. Court of Appeals — Second Circuit
• Parties: DELAWARE, L. & W.R. CO. v. BUSSE.

263 F. 516

DELAWARE, L. & W.R. CO. v. BUSSE.

No. 58.

United States Court of Appeals, Second Circuit.

January 14, 1920

Douglas Swift, of New York City, for plaintiff in error.

Frank J. Ryan, of New York City (Anthony J. Ernest, of New York City, of counsel), for defendant in error.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

This action is brought under the federal Employers' Liability Act (35 Stat. 65, c. 149, U.S. Comp. Stat. Sec. 8657; Barnes' Fed. Code 1919, p. 1937, Sec. 8069), to recover damages for personal injuries which plaintiff sustained on November 24, 1916, while employed by defendant. He has obtained a verdict in the sum of $5,250, and judgment had been entered in his favor in the amount of $5,280.40. The defendant has brought that judgment to this court, praying that it may be reversed and the complaint dismissed.

The complaint alleges that at the times mentioned therein the defendant was engaged as a common carrier in commerce between the several states; that defendant operated certain boats incidental to its business as a common carrier, which boats plied between its terminus at Hoboken, in the state of New Jersey, and Pier 26 in the East River in New York City; that plaintiff was employed by defendant as a watchman at the pier; that on the day of the accident plaintiff was standing near a doorway on the street side of a building located on the pier, when the sliding door approximately 25 feet by 30 feet in size, and which had been raised, fell from its fastenings above, and struck and severely injured him. It is alleged that the accident was due to the negligence of defendant. It appears that the freight is brought by defendant into a building from boats or lighters which bring it from Hoboken to New York, and it is also brought there to be loaded on boats or lighters and carried from New York to Hoboken. It was stipulated at the trial that all freight handled at this station, both inbound and outbound, moved in interstate commerce. The particular door which fell and injured plaintiff was used for the merchandise which was shipped over from New Jersey, and which passed through it for distribution around New York.

When an employe, whose duty it was, among other things, to raise and lower the particular door in question, found that he could not raise it, so that freight which had been called for could not be removed, he reported the matter to the head watchman and these two, together with the plaintiff, undertook to remedy the defect. The head watchman was one Mann, and the plaintiff testified as follows respecting him:

'Q. When you first went over to this building to work, to whom did you report? A. To Mr. Mann.

'Q. And the orders and the instructions that you got there during the daytime, when you were employed in the daytime-- from whom did you get your orders? A. I got all my orders from Mr. Mann.

'Q. He was the oldest man on the job there? A. He was the first man on the job. The other men got orders from Mr. Mann, too.

'Q. Have you heard Mr. Mann give orders and directions to the other watchmen in the building? A. Yes, sir.'

The plaintiff also testified that he had orders to look all doors over to see that they were in good shape, and he was asked what he did when he found this door was out of order. The testimony was as follows:

'Q. What is the first thing that you did? A. I looked for Mr. Henry Mann.

'Q. Did you find Mr. Mann? A. I found him on the other side of the building.

'Q. What did you say to Mr. Mann? A. I told Mr. Mann that the door on the north side of the pier is out of order.

'Q. Did you have orders to report these conditions to Mr. Mann? A. Yes, sir; because he makes all the reports over to Hoboken. He is the only man who makes reports over to Hoboken, as far as I know. I never made a report, except to give it to Mr. Mann.'

Then Mann, the plaintiff, and another employe, one Tony, went to the door. The plaintiff testified as follows:

'Q. Then did the three of you go over to the door? A. We went over to the door.

'Q. What is the first thing you did when you got over there? A. I showed Mr. Mann the door; so he looked at it; he looked at the chain, and he said, 'The door will have to be pushed over, that the wheels go right on the slide.' He said, 'I will climb up.' He climbed up where the transmission is, where the chain runs over the wheel.

'Q. What did you do? Did he give you any orders at that time as to what you were to do? A. Yes.

'Q. What did he tell you to do? A. He told us to take a bar to push the door over, an iron bar, so Tony went on the left-hand side of the door with his iron bar, and I took a little one about the size of my cane, and I went on the outside of the door to give protection, to put the bar between, so that, when he pushed the door over, she did not slip over that line.'

The plaintiff testified as follows as to how the injury happened:

'Q. After Mann got up above the door, what did you do, and what did Tony do? Tell us just how this thing happened. A. Well, Tony took his bar and put it on the south side, on the lower side; put it between the door and the sliding line, to push the door over, that the wheels go right on the tracks again. I went on the outside of the door, to try to give protection that the door did not slip over on that side, and we would have it in the same position, but on the other side; that it don't go too far over. Tony took one push over, and the door was not quite enough over, so he took a new grip. In the meantime I tried to go on the door, to get the protection when he took a new grip. The door came out, and hit me out in the street.'

The plaintiff was hit on his shoulder by the door and thrown some 10 or 12 feet into the street. He landed on his back on the pavement, and could not get up, and he sustained a fracture of the hip and other injuries. He was contradicted in important particulars.

At the close of plaintiff's case, counsel for defendant moved to dismiss the complaint upon the following grounds: (1) The plaintiff at the time of the accident was not engaged in interstate commerce. (2) That, if it be assumed that plaintiff was engaged at the time of the accident in interstate commerce, he had not proved that the accident was caused by any negligence of the defendant, or any person for whose acts defendant was responsible. (3) That plaintiff assumed the risk.

The court overruled the motion on each ground and in doing so stated that he was of the opinion:

'That the opening and shutting of gates through which goods are transferred exclusively in interstate commerce, or passing back and forth, is an employment in interstate commerce.'

The first question to be considered, then, is whether the plaintiff was, at the time of his injury, engaged in interstate transportation, or in work so closely related thereto as to be practically a part thereof. In St. Louis, San Francisco & Texas Railway Co. v. Seale, 229 U.S. 156, 33 Sup.Ct. 651, 57 L.Ed. 1129, Ann. Cas. 1914C, 156, the court held that one whose duty it is to examine incoming and outgoing trains, and make a record of the numbers of, and seal up and label cars, some of which are engaged in interstate and some in intrastate traffic, is directly and not indirectly engaged in interstate commerce; that interstate transportation is not ended by the arrival of the train at the terminal.

In Delaware, Lackawanna & Western R. Co. v. Yurkonis, 238 U.S. 439, 35 Sup.Ct. 902, 59 L.Ed. 1397, the court held that one who was injured when preparing to mine coal which was to be used in interstate commerce, after being mined and transported, was not engaged at the time of his injury in interstate commerce. He was not then carrying on interstate commerce.

In Shanks v. Delaware, Lackawanna & Western R. Co., 239 U.S. 556, 36 Sup.Ct. 188, 60 L.Ed. 436, L.R.A. 1916C, 797, the plaintiff at the time of his injury was engaged in taking down and putting up fixtures in a machine shop used for repairing locomotives employed in interstate and intrastate transportation. The court declared:

'The true test of employment in such commerce in the sense intended is: Was the employe 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?'

The court held that what the plaintiff was doing at the time of the accident had too remote a connection with interstate transportation, as the only function of the fixture was to communicate power to machinery used in repairing parts of engines, some of which were used in interstate transportation. In the case at bar the act of the plaintiff related solely to interstate transportation, as no intrastate freight was received or dispatched from Pier 26, and as the interstate freight passed through the door in question, the act of fixing it, so that it might be opened, had an immediate and not a remote connection with interstate transportation.

In Chicago, Burlington & Quincy R.R. Co. v. Harrington, 241 U.S. 177, 36 Sup.Ct. 517, 60 L.Ed. 941, the coal which was being moved was not in interstate commerce, but was in storage, and had been for a week, and was being moved to the coal chutes; and the court said that the mere taking of the coal to the coal chutes did not involve a close or direct relation to interstate transportation.

In Minneapolis & St. Louis Railroad Co. v. Winters, 242 U.S. 353, 37 Sup.Ct. 170, 61 L.Ed. 358, Ann. Cas. 1918B, 54 the plaintiff was injured while repairing an engine, which had been used in interstate commerce before the injury, and was so used afterwards, but there was nothing to show that it was permanently or specially devoted to such commerce. The court held he was not engaged in interstate...