Herzog v. Hines

• Decision Date: 15 November 1920
• Citation: 112 A. 315
• Parties: HERZOG v. HINES, Director General of Railroads.
• Court: New Jersey Supreme Court

112 A. 315

HERZOG

v. HINES, Director General of Railroads.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1920.

Appeal from Supreme Court.

Action by Frederick Herzog against Walker D. Hines, Director General of Railroads. Judgment of nonsuit, and plaintiff appeals. Affirmed.

Merritt Lane, of Newark, for appellant.

Wall, Haight, Carey & Hartpence, of Jersey City, for respondent.

GUMMERE, C. J. This action is based upon the federal Employers' Liability Act, 8 Fed. Stat. (2d Ed.) p. 1208 (U. S. Comp. St. §§ 8657-8665). It was brought to recover compensation for injuries received by the plaintiff, who was employed as a car repairer by the defendant in the New Durham yards of the West Shore Railway Company. This yard was used for the making up of freight trains, both interstate and intrastate, for the storage of cars, and also for the repair thereof. Tracks 25 and 27 were known as "deadhead tracks," and were used for the storage of freight cars which required repair. These cars, when in service, were used indiscriminately in interstate and intrastate commerce. On the day of the accident the plaintiff was engaged in repairing a freight car which had been placed upon track 27. He was called away from his work by the assistant foreman, his immediate superior, to look at a car on track 21, which had just been repaired. After some conversation with the assistant foreman relating to this car, he started to go back to resume his work of repair on the car standing on track 27. He crossed over several tracks which were empty, and when he reached track 25 he undertook to cross it by crawling under one of several cars which were standing thereon. While doing this the car was moved slightly by a yard engine, and the plaintiff was so close to the rear trucks that he was run over and severely injured. This, in brief, was the case made when the plaintiff rested. The defendant thereupon moved to nonsuit, principally upon the ground that the proofs showed affirmatively that plaintiff was not engaged in interstate commerce at the time of the happening of the accident. The trial court took this view and granted the motion. The plaintiff appeals.

The judgment of nonsuit was properly ordered, the ruling of the trial judge being in accord with the late decisions of the United States Supreme Court.

In Erie Railroad Co. v. Welsh, 242 U. S. 303, 37 Sup. Ct. 116, 61 L. Ed. 319, the true test to be applied in determining whether or not a given case was within the federal statute was declared to be the nature of the work being done at the time of the injury; and it was held that the fact that the plaintiff, who was a yard conductor in the company's employ, had shortly before the accident been engaged in superintending the shifting of an interstate car, and that he was returning to the yardmaster's office after he had completed this task, for instructions as to what, work he should next engage in, when the accident occurred, and the further fact, had he reached the yardmaster's office safely, he would then have been directed to assist in making up an interstate train, were not sufficient to bring the case within the act.

Although the facts of the cited case are quite unlike those which are presented in that now before us, the test laid down is applicable; that is, was the work being done by ...