Erie R. Co. v. Downs

• Decision Date: 10 April 1918
• Docket Number: 207.
• Citation: 250 F. 415
• Parties: ERIE R. CO. v. DOWNS.
• Court: U.S. Court of Appeals — Second Circuit

250 F. 415

ERIE R. CO. v. DOWNS.

No. 207.

United States Court of Appeals, Second Circuit.

April 10, 1918

The plaintiff in error will be hereinafter referred to as defendant, and the defendant in error as plaintiff. The plaintiff is a citizen of New Jersey. The defendant is a corporation organized and existing under the laws of the state of New York. The plaintiff brought an action under the federal Employers' Liability Act to recover damages for personal injuries sustained by him while in the employ of defendant. He obtained a verdict from a jury for $22,500 which the trial court reduced to $20,000.

The plaintiff was a yard brakeman, and was struck down and run over by a car in the defendant's yard at Jersey City, as a result of which he lost his right arm. It is claimed the accident occurred by reason of the defendant permitting cars to move about its yard while it was dark, without providing lights on the cars or brakemen to control the movement of the cars or to warn of their approach. The plaintiff had been employed in the yards for 19

years. The yard was divided into various subyards, and the accident occurred in what is known as 'Yard A,' and the cars in that yard are sent over what is called the North Hump. ' This hump is 10 feet high, and it descends sharply for a distance of 300 feet at a grade of 3.8, and then tapers gradually for about 500 feet to a level grade. The cars come from a receiving yard (yard D) into yard A, which is a classification yard, and as they reach the top of the hump they are cut off in 'cuts' of from 1 to 20 cars, and are permitted to roll down the hump by gravity into some one of the 21 tracks which that yard contains, where they are made up into trains for different points.

The plaintiff had served as brakeman, conductor, and yardmaster. On the day in question he was serving as a freight brakeman in a crew engaged in switching cars. He testified that just previous to the injury he had been engaged with his engine in an operation consisting of moving about 50 or 60 cars from yard A into yard E, and was protecting the rear end of the string of cars so moved. That operation being concluded, he left that string of cars to return and pick up his engine in yard A; the engine being about 50 cars away from him. To regain his engine he had to cross a number of tracks, and as he approached the track on which he was injured he looked, he said, to the east and to the west. He saw a car standing to the east and some to the west, with an open space of 15 or 18 feet between. He could see nothing coming on the track from either direction and started to cross. As he took one step beyond the first rail he heard a crash, and was knocked down and run over. A car had come down the hump ^[1] and crashed into the stationary car, which knocked him down and ran over him. The force of the impact was such as to drive the car collided with over 90 feet, even against the resistance afforded by the weight of the cars standing 9 or 10 feet to the west of the plaintiff. There was no one on the colliding car at the time to control its speed or give warning. The practice was for the conductor in charge of a switching crew to have brakemen varying in number mount the cars as they were cut off at the top of the hump and ride them down the hump into the classification tracks, so as to control their speed and that no damage would be done. It sometimes happened, even at night, that a conductor would drop 2 or 3 empty cars down the hump, without a brakeman in charge and without lights, when he knew that there was a long, clear space on the track along which the cars could run gradually until they came to a stop.

The accident happened on November 23, 1916, a little after 5 o'clock in the afternoon. It was raining and getting dark, and the plaintiff and the other members of his crew had their lamps lighted.

Stetson Jennings & Russell, of New York City (William C. Cannon, R L. Von Bernuth, and Coulter D. Young, all of New York City, of counsel), for plaintiff in error.

Sydney A. Syme, of Mt. Vernon, N.Y., for defendant in error.

Before ROGERS and HOUGH, Circuit Judges, and LEARNED HAND, District judge.

ROGERS Circuit Judge (after stating the facts as above).

Inasmuch as the action has been brought under the federal Employers' Liability Act, the first question to be determined is whether at the time of his injury the plaintiff was actually engaged in interstate commerce. If he were not so engaged, we need not inquire further. To maintain the action it must appear that at the time of the injury he was employed in moving or handling cars engaged in interstate commerce, or performing an act so directly and immediately connected with the act of moving or handling such cars as to be a part of it or a necessary incident thereto. From what has already been said, it is apparent that he had been engaged in shifting a string of cars from yard A to yard E. It is conceded that some of the cars in that string were engaged in interstate commerce. Some of the cars contained freight transported from other states into the state of New Jersey, and some of the cars contained freight which was being transported from the state of New Jersey to other states, and remaining cars contained freight which was being transported between points wholly within the state of New Jersey; and it was stipulated that the next switching movement, subsequent to the occurrence of the accident, which was made by the switch engine and switching crew to which plaintiff belonged, consisted in moving three cars containing coal which had been transported from the state of Pennsylvania into the state of New Jersey.

The defendant insists that the plaintiff had completed the switching operation he had been engaged in, and was injured while on the way back to receive orders which would require the beginning of a new operation. On the other hand, the plaintiff argues that the engagement was not completed until he had rejoined his engine, and that his walking back for that purpose was necessarily the final act in the operation first engaged in. The defendant relies upon Erie Railroad Company v. Welsh, 242 U.S. 303, 37 Sup.Ct. 116, 61 L.Ed. 319, and insists that the facts in that case are similar to those in this. In that case the plaintiff was, and for some time had been, a yard conductor, engaged in miscellaneous services in the way of switching and breaking up and making trains under the orders of the yardmaster, and had to apply frequently to the latter for such orders. On the night of the accident the plaintiff, with a yard crew, took a freight car loaded with merchandise destined to a point without the state into the classification yard, and placed it on a siding, where it was left, then proceeded a short distance further with an intrastate caboose, and left it on a different track, then took the engine to a water plug and took on water, and started back with the engine to the yard from which it originally came, slowing down on the way near the yardmaster's office, where the plaintiff jumped off to get further orders. In jumping, his feet became entangled in signal wires, and he was thrown under the engine and injured. It appeared that the orders he would have received, had he not been injured on his way to the yardmaster's office, would have required him immediately to have made up an interstate train. The court held that he could not maintain his action, as he was not at the time engaged in interstate commerce.

We do not, however, agree that the facts in that case are so similar to the facts in this case that the decision in that must be regarded as decisive in this. There were three distinct acts involved in that case. The first was an act in interstate commerce. The second was in intrastate commerce. The third act of taking on water may be disregarded as being preparatory to whatever work might next be engaged in. The act of intrastate commerce intervened between the act of interstate commerce and the injury. The Supreme Court of Ohio had held that the plaintiff was not at the time of the injury employed in interstate commerce. The case was taken to the Supreme Court of the United States. The court said:

'The question remains whether he was performing an act so directly and immediately connected with his previous act * * * as to be a part of it or a necessary incident thereto. * * * And this depends upon whether the series of acts that he had last performed was properly to be regarded as a succession of separate tasks or as a single and indivisible task.'

The court held that it could not say that the Ohio courts had committed manifest error and affirmed the judgment. The case is clearly distinguishable from the one under consideration, for here the act prior to the injury was an act of switching cars engaged in interstate commerce; and in returning therefrom to the engine his act was so immediately connected with his previous act as to be a necessary incident thereto.

In Erie Railroad Company v. Winfield, 244 U.S. 170, 37 Sup.Ct. 556, 61 L.Ed. 1057, the action was brought to recover for the death of an employe in charge...