Illonardo v. Erie R. Co.

• Decision Date: 23 November 1926
• Docket Number: No. 57.,57.
• Citation: 135 A. 77
• Parties: ILLONARDO v. ERIE R. CO.
• Court: New Jersey Supreme Court

135 A. 77

ILLONARDO

v. ERIE R. CO.

No. 57.

Supreme Court of New Jersey.

Nov. 23, 1926.

Appeal from Circuit Court, Hudson County.

Action under the federal Employers' Liability Act by Alfonso Illonardo against the Erie Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued May term, 1026, before GUMMERE, C. J., and TRENCHARD and MINTURN, JJ.

Edward A. Markley and Charles W. Broadhurst, both of Jersey City, for appellant.

Alexander Simpson, of Jersey City, for respondent.

GUMMERE, C. J. The plaintiff was employed as a common laborer at the roundhouse of the defendant company at Secaucus, used by the defendant both in interstate and intrastate commerce. While he was engaged in this work a crippled engine was brought to the roundhouse for the purpose of having repairs made to it, and he was called upon to assist in opening one of the doors of the building in order to admit the engine. While assisting in doing this, and before the door was entirely opened, the engine, which had come to a stop some 15 or 20 feet away, was started up without warning to the plaintiff, crashed into the door, and severely injured him. These facts were undisputed. The present suit is brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), to recover compensation for the injuries that he received. The trial resulted in a verdict in favor of the plaintiff, and from the judgment entered thereon the defendant has appealed.

The first ground upon which we are asked to reverse this judgment is that the trial court committed error in charging the jury as a matter of law that the plaintiff was engaged in interstate commerce at the time of the accident. The pith of this contention is that, under the evidence, the question whether the plaintiff was then engaged in interstate or intrastate commerce was one of fact, to be determined by the jury, and that the ruling was not only erroneous, but was harmful, for the reason that, if the jury should have found that the plaintiff was engaged in the latter kind of commerce at the time of the accident, there could be no recovery by him under the federal statute, his sole remedy in that case being under our Workmen's Compensation Act (Laws 1911, p. 134, as amended). We consider that the judicial action which is the subject of this complaint was entirely justified. The theory of counsel for the defendant seems to be that the character of the plaintiff's employment at the time of the accident depended upon whether the engine which inflicted the injury upon him was at that time engaged in interstate commerce; the testimony showing the contrary to be the fact. But this theory is not sound. The plaintiff had nothing to do with the management of the engine or with its repair. He was a roundhouse employee, and that building was used indiscriminately both in interstate and intrastate commerce. In this respect the case is similar in its legal aspect to that of Grybowski v. Erie R. R. Co., 88 N. J. Law, 1, 95 A. 764, affirmed, 89 N. J. Law, 361, 98 A. 1085. In the cited case the plaintiff's intestate was an employee of the defendant company at its ash pit in the terminal yard at Jersey City. This pit was intended to be and was in fact used both by engines engaged in interstate commerce and by those engaged in intrastate commerce. A part of the duty of plaintiffs decedent as such employee was...