Geraghty v. Lehigh Valley R. Co.

• Decision Date: 16 April 1934
• Docket Number: No. 151.,151.
• Citation: 70 F.2d 300
• Parties: GERAGHTY v. LEHIGH VALLEY R. CO.
• Court: U.S. Court of Appeals — Second Circuit

70 F.2d 300 (1934)

GERAGHTY v. LEHIGH VALLEY R. CO.

No. 151.

Circuit Court of Appeals, Second Circuit.

April 16, 1934.

Alexander & Green, of New York City (Clifton P. Williamson and H. S. Ogden, both of New York City, of counsel), for appellant.

Thomas J. O'Neill, of New York City (William J. Hogan, of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

SWAN, Circuit Judge.

This action was brought by the plaintiff, as executrix and sole beneficiary, to recover damages for the injury and death of her deceased husband, James J. Geraghty, while he was employed as a freight conductor by the defendant railroad. The complaint alleged that his injury and resulting death were caused by the defendant's negligence or by defective couplers upon its cars at a time when he was engaged in interstate commerce. The defendant rested at the conclusion of the plaintiff's case, and moved for a directed verdict. This motion the court reserved and ultimately denied, as it did also a motion to set aside the verdict. See (D. C.) 3 F. Supp. 376. From the judgment entered on the verdict, the defendant has appealed.

The principal questions raised by this appeal are whether the plaintiff proved a case under the Federal Employers' Liability Act (45 USCA §§ 51-59) and whether the Federal Safety Appliance Acts (45 USCA § 1 et seq.) apply.

The first question must be answered in the negative. Upon the undisputed facts we think it is impossible to hold that Geraghty was employed in interstate commerce at the time of his injury. The accident occurred at the plant of the American Smelting & Refining Company located near Perth Amboy, N. J. This plant was inclosed by a high fence, and within the inclosure were many buildings and nearly 30 miles of railroad track. In the fence was a gate controlled by the smelting company to permit engines and cars to enter or leave its plant. Once cars had passed this gate, the initial placement of them and all subsequent movement was done only upon orders of the smelting company's yardmaster, Sprague. Pursuant to an arrangement with the smelting company, the defendant was accustomed to send an engine and crew, of which Geraghty was in charge, to do switching within the plant. It did so on February 3, 1932, the date of the accident. The car movement in which Geraghty was engaged when he sustained injury related to five cars which had been delivered at the plant the previous day loaded with interstate shipments of scrap lead. These cars reached the defendant's Perth Amboy yard on February 1st; the bills of lading were given up, and the defendant delivered them at the plant at 10:20 a. m. on February 2d. After being weighed by the smelting company upon its scale, the cars were placed in accordance with orders given by Sprague. Two of them were put within the converter building for unloading by the smelting company's employees; of the other three, two were left upon track 8 and one on the so-called storage track. Shortly before 1 p. m. on February 3d, Sprague gave Geraghty orders to remove from the converter building the two cars placed there the day before, which in the meantime had been unloaded by the smelting company's employees, and to replace them with the three loaded cars. Geraghty proceeded to carry out these orders. The switch engine hauled the three loaded cars to a point on track 6 near to the converter building and then uncoupled and backed in on the converter track to get the two unloaded cars out of the way. Between them and the engine were several flat cars owned by the smelting company and used by it solely within its plant. One of the flat cars, No. 115, was coupled to the two unloaded cars. The other flat cars were a string of four and it was necessary to couple them to the east end of car No. 115 in order to pull out the two unloaded cars. Geraghty, who gave signals to the engineer for this coupling, stepped between the cars as they were about to meet. They came together lightly and made a coupling at the first impact, but Geraghty was so badly crushed between them that he died two days later. It was possible to infer that he went between the cars to adjust the couplers, which a subsequent examination disclosed to be so badly worn as to allow the end sills to come too close together.

Upon these facts it must be held that the car movement upon which Geraghty was engaged was not interstate commerce, but a local switching movement. The bills of lading had been given up and the five interstate cars had come to their destination on the day preceding the accident. Any subsequent movement of them within the plant was wholly subject to the smelting company's control and for its convenience. Interstate movement ceases when cars reach their destination and are merely awaiting discharge by the consignee, even though they must be moved again to get to the place of discharge, Delaware, L. & W. R. Co. v. Peck, 255 F. 261 (C. C. A. 2); Schauffele v. Director General, 276 F. 115 (C. C. A. 3). To the same effect are Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 36 S. Ct. 517, 60 L. Ed. 941, and Lehigh Valley R. Co. v. Barlow, 244 U. S. 183, 37 S. Ct. 515, 61 L. Ed. 1070, for it can make no difference in respect to the interstate character of the movement whether the goods transported are the carrier's or the consignee's, nor how long they have been at rest after delivery. Neither is it material that the unloaded cars would be returned into interstate commerce, for they had not yet been assigned to or accepted by the defendant for a journey outside the limits of the plant. See Wise v. Lehigh Valley R. Co., 43 F.(2d) 692, 694 (C. C. A. 2); Coe v. Errol, 116 U. S. 517, 528, 6 S. Ct. 475, 29 L. Ed. 715; cf. Phila. & Reading R. Co. v. Hancock, 253 U. S. 284, 40 S. Ct. 512, 64 L. Ed. 907. A more plausible argument is made by the plaintiff on the ground that the defendant was to receive no extra payment for this switching, from which it is inferred that delivery to the place of unloading was included within the interstate freight rate. The proof was no more than that Sprague entered on his time sheet no credit to the railroad for switching of interstate cars, while his practice was to give credit for time spent in switching cars owned by the smelting company. It may be that the defendant did this work gratis; but we cannot see that this is material. Whether the carrier received extra compensation or regarded it as paid for by the through rate, the switching was a local plant movement after the interstate journey had come to an end. Cf. Delaware, L. & W. R. Co. v. Peck, supra. Finally, the plaintiff argues that the cars, which had been weighed loaded, were to be reweighed empty in order to check the tonnage of the interstate shipment, upon the basis of which tonnage the freight was collected; and therefore the cars should be deemed to continue in interstate commerce until the reweighing was accomplished, or at least the taking of an empty car to the scales should be held to be so intimately related to interstate commerce as to constitute a part of it. As to the latter branch of the argument, it is sufficient to say that Geraghty was not engaged in taking the unloaded cars to the scales when his injury befell. As to the former branch of the argument, some support may be found for it in the language of Wheeling Terminal R. Co. v. Russell, 209 F. 795 (C. C. A. 4), although the actual decision does not go so far. There the empty cars which were being weighed were already made up into an interstate train for their return journey; if the court meant that from the time of their arrival they remained in interstate commerce until weighed empty, we cannot agree.

Since Geraghty was not engaged in interstate commerce and the jury was allowed to find that he was, the judgment must be reversed unless the issue of interstate commerce is immaterial. The plaintiff contends upon this appeal that it is, because a violation of the Safety Appliance Acts was proved to have caused Geraghty's death. The defendant denies that the acts were applicable or a violation of them proved. These acts protect railroad employees injured as a result of any violation of their provisions regardless of whether or not the employees were engaged in interstate commerce. Southern R. Co. v. United States, 222 U. S. 20, 32 S. Ct. 2, 56 L. Ed. 72; Texas & Pac. R. Co. v. Rigsby, 241 U. S. 33, 41, 36 S. Ct. 482, 60 L. Ed. 874. Section 2 of the first Safety Appliance Act (Act March 2, 1893, c. 196 45 USCA § 2) reads as follows:

"Automatic couplers. It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars."

By the amendatory act of 1903 (Act March 2, 1903, c. 976, § 1 45 USCA § 8), the foregoing requirement was extended "to apply to all * * * cars * * * used on any railroad engaged in...