Dennison v. Payne

• Decision Date: 20 June 1923
• Docket Number: 151.
• Citation: 293 F. 333
• Parties: DENNISON v. PAYNE, Agent, etc.
• Court: U.S. Court of Appeals — Second Circuit

293 F. 333

DENNISON v. PAYNE, Agent, etc.

No. 151.

United States Court of Appeals, Second Circuit.

June 20, 1923

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

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

Before ROGERS, MANTON, and MAYER, Circuit Judges.

ROGERS Circuit Judge.

This action was brought under the federal Employers' Liability Act (Comp. St. Secs. 8657-8665) to recover damages for the death of the plaintiff's intestate, who for several years prior to his death had been in the employ of the Delaware Lackawanna & Western Railroad Company, and at the time of his death was in the service of the federal agent, John Barton Payne defendant herein, who was operating the said railroad under government control. At the time he met his death the decedent was acting as a train flagman of a switching crew. He was killed on the night of April 28, 1919, while riding in the caboose of his train, by reason of a collision between his train and another on the same track. The crew to which he belonged left the Hanover yard of the railroad about 7 p.m on the night above mentioned, with a train consisting of loaded coal cars, three engines, and a caboose for the Hampton yard, a movement of about 22 miles over the main line of the Bloomsburg division of the Delaware, Lackawanna & Western Railroad, and entirely within the state of Pennsylvania. The crew was charged with taking the train of loaded coal cars to Hampton yard only. At that point the train was broken up by other crews, and the cars made up into other trains for points beyond. This train contained one car of coal which was billed at the mines to a point outside the state of Pennsylvania. On the arrival of the train at Hampton yard it was placed upon a receiving track, and the three engines and a caboose were disconnected from the train and coupled together, and with these engines and the caboose the entire crew, including the decedent, left Hampton yard for a point called Taylor crossover, about 3 miles distant. When the crew left the coal cars at Hampton yard, they had completely ended their work in connection therewith. The movement from Hampton yard to Taylor crossover was in the direction of Kingston or Scranton; that is to say, at Taylor crossover a train coming from Hampton yard might proceed either in the direction of Scranton, a distance of 3 miles, or in the direction of Kingston, a distance of about 18 miles. It was on the movement from Hampton yard to Taylor crossover, and at a point about 2,000 feet short of the latter point, that the accident in which decedent lost his life occurred.

The railroad had in effect standing instructions for such crews on leaving Hampton yard to go to Taylor crossover and report for orders. At that point they might receive orders to move trains of empty cars from Taylor yard to Kingston or to go to Scranton and get cars of live stock or freight for points on the Bloomsburg division. When Conductor Smith's crew left Hampton yard with the three engines and caboose, they were proceeding pursuant to such standing instructions in the direction of Kingston, where all the train crew lived except one, and he had to go there to reach his home in a neighboring village, and it was at Kingston that the engines and caboose were nightly stalled, that they might be available for the train crew to commence work on the following morning. When this last train had been delivered at the Hampton yard, the entire train crew had been on duty and done a full day's work of 8 hours. Unless the conductor received further orders for work that night, when he reported to the yardmaster at Taylor crossover, the crew's duty for the day was done, and they had simply to return to their homes at Kingston and stall their equipment. If necessary, on their arrival at Taylor crossover, orders might have been issued calling upon the crew to work 8 hours longer overtime.

But before the engines and the caboose which contained the crew arrived at the Taylor crossover they ran into a loaded coal train standing unlighted and unguarded on the same track. The negligence of the defendant is admitted. As a result of this accident the plaintiff's intestate was killed, and also the fireman on the engine and the two brakemen. The plaintiff's intestate died from his injuries on the day following the accident. It appears that, if the accident had not occurred and the crew had arrived at the Taylor crossover, the conductor would have inquired of the yardmaster if there were any further orders for him, and would have received orders to move some empty cars from Taylor yard to Kingston yard. The assistant chief train dispatcher at Scranton, who at that time was in charge of the movement of trains over the Bloomsburg division, knowing that this crew was on the way from Hampton yard to Taylor crossover, had given to the yardmaster at the latter point orders to be given to the crew conductor upon his arrival at Taylor crossover.

At the beginning of the trial the counsel for the defendant stated to the court that he admitted that the plaintiff's intestate was killed in an accident which was caused by the negligence of a fellow servant, and that the defense was: (1) That he was engaged in intrastate commerce at the time of the accident, and that therefore there could be no recovery under the Employers' Liability Act. (2) That an award of compensation was made to the plaintiff by the Workmen's Compensation Board of Pennsylvania for the death of her husband, and that the award made is res adjudicata in the present action. He also admitted that the train of cars which was handled by the crew, to which the decedent belonged, and which was moved from Hanover yard to Hampton yard on the night of the accident, contained one car that was billed to a point outside of the state of Pennsylvania. The movement of that train was therefore an interstate movement.

The questions which this case presents are two. The first is whether the plaintiff's intestate met his death while he was employed in interstate commerce. If he did, then it will be necessary to inquire whether the proceedings before the Workmen's Compensation Board of the state of Pennsylvania operated as an estoppel preventing the plaintiff from maintaining this suit. If the plaintiff's intestate did not meet his death while he was engaged in interstate commerce, there is no right of recovery in this suit in any event. But, if he was so engaged, we must reverse the judgment, unless the plaintiff is estopped from maintaining this suit because the matter is res adjudicata, in view of the proceedings before the state board in Pennsylvania.

We proceed to the consideration of the question whether the plaintiff's intestate met his death while engaged in interstate commerce. In support of the proposition that he was at the time engaged in interstate commerce, the plaintiff relies upon Erie Railroad Co. v. Winfield, 244 U.S. 170, 37 Sup.Ct. 556, 61 L.Ed. 1057, Ann. Cas. 1918B, 662. In that case at the conclusion of his day's work the employee of the railroad took his engine to the place where it was to remain for the night and started to leave the yard. While so leaving he was injured. The court held that in leaving the carrier's yard at the close of his day's work he was but discharging a duty of his employment; that, like his trip through the yard to his engine in the morning, it was a necessary incident of his day's work, and partook of the character of that work as a whole, being no more an incident of one part than of another; as his day's work had been in both interstate and intrastate commerce, therefore, when he was leaving the yard at the time of the injury, his employment was in both; that he was plainly employed in interstate commerce. That his employment also extended to intrastate commerce was, the court said, 'for present purposes of no importance.'

It is claimed that that case is decisive of the one now before us, as it appears that, after the train crew had made delivery of its last train of cars, including the interstate car, at the Hampton yard, and begun the trip to the Taylor crossover, the intestate had finished his work for the day and was practically 'on his way out of the yards. ' The evidence shows that he had completed his eight hours of service. The Act of September 3-5, 1916, c. 436, 39 Stat. 721 (Comp. St. Secs. 8680a-8680d), provides that 8 hours shall be deemed a day's work for persons employed by common carriers by railroad, with certain exceptions which need not be now considered. Having completed his work, the decedent was on his way home, unless he received orders at the Taylor crossover to perform additional service; but in any event the run he made from Hampton yard on his way back was incidental to the work last engaged in, and that was in interstate commerce, as well as in intrastate commerce, which last may be disregarded in this case, as in the Winfield Case.

The defendant, on the other hand, relies upon Erie Railroad Co. v. Welsh, 242 U.S. 303, 37 Sup.Ct. 116, 61 L.Ed 319. In that case a yard conductor, accompanied by a yard crew, took a freight car destined to a point without the state and loaded with merchandise, and a caboose which, so far as appears, was not to go beyond the limits of the state, from Brier Hill yard to the F.D. yard in Youngstown, where the freight car was placed upon a siding to be made up into a train by another crew. They then took the caboose a short distance farther and placed it on a siding. They next took the engine to a water plug and took on water, and then returned with it to the Brier Hill yard. On this return movement the engine was slowed down near the yardmaster's office, so as to enable the plaintiff to report for further orders, all...