Erie R. Co. v. Szary

• Decision Date: 03 February 1919
• Docket Number: 160.
• Citation: 259 F. 178
• Parties: ERIE R. CO. v. SZARY. [1]
• Court: U.S. Court of Appeals — Second Circuit

259 F. 178

ERIE R. CO. v. SZARY. ^[1]

No. 160.

United States Court of Appeals, Second Circuit.

February 3, 1919

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.

John C Robinson, for defendant in error.

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

ROGERS Circuit Judge.

This is a personal injury case, in which the plaintiff has obtained a verdict for $20,000 for the loss of a leg, which resulted from injuries he received while employed by the defendant in its yards at Jersey City. The case has been brought to this court on the theory that the plaintiff was not at the time of his injury engaged in interstate commerce, and so was not entitled to maintain the action under the federal Employers' Liability Act.

It appears that plaintiff was employed as an engine sander. He prepared the sand to be used, and placed it in the engines that came into the defendant's yard and which needed it, whether such engines were engaged in interstate or intrastate commerce. An engine of ordinary size would carry about thirty pails of sand. This sand the engines had to use in order to go upgrade or over slippery tracks. In doing this work, two other men were associated with the plaintiff in his task. They did their work of preparing the sand in what is called 'the sand house,' a small structure standing in the yards and alongside the tracks. The sand was brought into the yard by cars every Sunday morning, and a Browning hoist lifted it from the cars into a sand bin. The plaintiff and his associates would get the sand from the bin into which it had been shoveled by a big steam shovel. The work consisted in drying the sand in four big stoves built for the purpose, and which were surrounded with what are described as 'big covers,' into which the sand is shoveled, and from which, as it dries, the sand gradually drops out onto the ground. The stoves are heated with soft coal, and it was in line with the plaintiff's general work to supply the coal to the stoves and to remove the ashes of the burned coal. These ashes he or his associates would take out of the stoves and carry some little distance from the sand house, to what was known as an ash pit, some 30 feet distant, where they were dumped, and to reach the ash pit it was necessary to cross some of the tracks.

On the night of the accident, January 5, 1917, the plaintiff began his usual work at 6 p.m., and put the sand into about seven engines, which he said were going to other states. He sanded the last engine that night at 9 o'clock and the accident happened half an hour thereafter. After sanding his last engine he took the ashes out of the stove and carried them over to the ash pit in a pail according to his custom, and in doing so had to cross one of the tracks. He dumped his pail and left it on the ground, while he went to the engine room to get a drink of water, and in doing so was compelled to cross a track; and, having obtained a drink, he started back to cross the track to get his pail, and in attempting to cross the track was hit by an engine. He had looked, but saw no engine, and heard no signal. The night he described as 'very dark and very foggy and rainy and misty. ' The plaintiff testified that at the time he could not see anything. The steam and smoke from the engines in all parts of the yard were so thick that he could see nothing. The engine that hit him was running backwards and without a light. He was picked up and carried to a hospital, and his left leg was amputated the same night, being removed from two to three inches below the knee.

The question presented is whether the plaintiff, at the time of his injury, was engaged in interstate commerce. It will be conceded, we suppose, that workmen engaged in bolting timbers into a bridge which is a part of the line of an interstate railroad are engaged in the work of interstate commerce; and if timbers have been delivered at the bridge, which the men are actually engaged in shortening, narrowing, and thinning to make them fit the places into which they are to be bolted, such preparatory acts so far partake of the character of the final act of bolting that, if an accident happens to the men while so employed, it should be held that they were at the time engaged in interstate commerce; and if, after the work of shortening, narrowing, and thinning is done, the men collect the rubbish they have made and remove it to a dump, that act is so connected and related to the other that, if they are injured while so engaged, they would be entitled, as it seems to the writer, to recover under the federal Employers' Liability Act. The writer is unable to distinguish such a case from the case now under consideration. The act of sanding the locomotives is an act done in interstate commerce. The act of drying the sand in the stoves, performed by the same man who sands the engines and in preparation for that act, is as much related to it and as much partakes of its character as does the act of preparing the timbers to be placed in the bridge; and the act of removing the ashes is not distinguishable from the act of removing the rubbish in the case above mentioned.

It appears that, after the plaintiff had dried the sand in the stove, he sieved it and took it out of the sand house, which was a diminutive structure, a small shed, and put it into bins in a little shed next to the sand house, from which he would take it during the day and night, when he filled the sand bin in the engines. To speak of sand in these bins as being in storage, when it was used up in 24 hours is a rather exaggerated use of the term. For each night the plaintiff had ready a new supply of the sand, and whether the sand, after being heated and sieved, was permitted to lie on the floor of the sand house, or for convenience was put in a bin in an adjoining shed, is a matter of no consequence. The amount of sand needed every 24 hours by the large number of engines coming into the defendant's yards at Jersey...