Grybowski v. Erie R. Co.

• Decision Date: 05 November 1915
• Citation: 95 A. 764
• Parties: GRYBOWSKI v. ERIE R. CO.
• Court: New Jersey Supreme Court

95 A. 764

GRYBOWSKI

v. ERIE R. CO.

Supreme Court of New Jersey.

Nov. 5, 1915.

Appeal from Circuit Court, Hudson County.

Action by Constantine Grybowski, administrator, against the Erie Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued February term, 1915, before GUMMERE, C. J., and GARRISON and MINTURN, JJ.

George S. Hobart, of Jersey City, for appellant. Frank M. Hardenbrook, of Jersey City, for respondent.

GUMMERE, C. J. This action was based upon the federal statute of April 22, 1908, entitled "An act relating to the liability of common carriers by railroad to their employees in certain cases." The plaintiff's intestate, on January 11, 1912, while in the employ of the railroad company at its ash pit, in its Jersey City terminal yard, was run over and killed by a locomotive engine. This ash pit was constructed between and underneath certain of the yard tracks, and incoming locomotives were moved over it so that the ashes which had accumulated during their trips might be dumped into it. The plaintiff's decedent was engaged in cleaning out the ashes therefrom, and was just coming out of the pit, when the accident occurred which caused his death. The trial resulted in a verdict for the plaintiff, and from the judgment entered thereon the defendant company appeals.

The first ground upon which the defendant seeks a reversal of the judgment is the refusal of the trial court to direct a verdict in its favor. This motion was rested upon several grounds: First, that the proofs did not bring the case within the federal statute, as the accident to plaintiff's decedent did not happen while the defendant was engaged in interstate commerce, and that the decedent did not come to his death while employed by the defendant in such commerce. We think the motion to direct a verdict upon the ground stated was properly denied. The first section of the federal act provides that every common carrier by railroad while engaging in commerce between any of the several states or territories shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or in case of the death of such employé, to his or her personal representatives for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carriers. The proofs show that the ash pit was a part of the plant of the defendant company, that it was a necessary part of that plant, and that it was used both in interstate and intrastate commerce. The keeping of it clean, and thereby maintaining its effectiveness, was required equally for both kinds of commerce, just as the keeping in repair of tracks or bridges which are used for both kinds of commerce is a necessary incident to each of them. In Pedersen v. D., L. & W. R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 19140, 153, it was held that:

"One engaged in the work of maintaining tracks and bridges in proper condition after they have become and during their use as instrumentalities of interstate commerce is engaged in interstate commerce, and this, even if those instrumentalities are used both in interstate and intrastate commerce."

And the application of this principle led the court to hold that an employé who was injured while repairing a bridge which was so used, by being run down by an intrastate passenger train, was entitled to maintain an action under the federal statute. (Note: It is to be observed that the syllabus of the cited case shows that the train which ran down the employé was an interstate train. The body of the opinion, however, page 150 of 229 U. S. shows this statement to be inaccurate, and that the train was an intrastate one.) Although in the Pedersen Case it was conceded that the railroad company was engaged in interstate commerce at the time o the occurrence of the accident, the principle of the decision would necessarily have compelled such a finding, even in the absence of the concession, for the plaintiff could not, at the time of the accident, have been employed by the carrier in such commerce unless the latter at the same time was engaged therein. Under the law as laid down by the cited case, therefore, and which is controlling upon us, the present case comes within the federal stat...