Kelly v. Pennsylvania R. Co.

• Decision Date: 26 December 1916
• Docket Number: 2157
• Citation: 238 F. 95
• Parties: KELLY v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Third Circuit

238 F. 95

KELLY v. PENNSYLVANIA R. CO.

No. 2157

United States Court of Appeals, Third Circuit.

December 26, 1916

Kincaid & Kincaid, of Corry, Pa., and Brooks & English, of Erie, Pa for plaintiff in error.

Thompson & Rossiter, of Erie, Pa., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

McPHERSON Circuit Judge.

The plaintiff is the widow and executrix of Elmer J. Kelly, and is suing the Pennsylvania Railroad Company under the amended Act of 1908 to recover damages for her husband's death. On January 23, 1914, he was run over and instantly killed in the company's yard at Corry, Pa. The defendant is an interstate carrier, and operates (among other branches) a line from Buffalo to Pittsburgh, this line running through the city of Corry.

The deceased was a foreman of carpenters on the Chautauqua division, which extends from Buffalo to Oil City, Pa., and had gone to Corry for the purpose of making repairs of some kind to the coal chutes and roundhouse in that city; these structures being used for both kinds of business, interstate and intrastate. So far as appears, Kelly did no work on the roundhouse, but sent one of his men to the roof of that building, while he himself went to a signal tower in the neighborhood, where he waited for an hour or two until he had arranged with the yardmaster to move a car of lumber to a track near the chutes. This arrangement having been made, and the car having been taken hold of by a work train consisting of an engine, a tool car and a caboose, he walked from the tower toward the chutes in the middle of the track, or close alongside, and while on the way was run over by the train, which was backing toward him without a man on the end thus presented. As the trial judge entered a nonsuit, we assume the defendant's negligence.

Kelly's general duty required him to go over the division from time to time in order to repair bridges, chutes, roundhouses, and other structures. The chutes in question were used for coaling the defendant's engines, of which some were used in the yard, and some on the road. The tools on the work train were used wherever needed on the division, but at the time of the accident they were not in use, and their immediate employment was not in contemplation. The plaintiff's contention is, of course, that both her husband and the defendant were engaged in interstate commerce at the time he was killed, and the nonsuit is put on the ground that the evidence did not establish the fact that Kelly was so engaged. The opinion of Judge Orr is as follows:

This matter comes before the court upon a motion to take off a compulsory nonsuit.

This action was brought under the Employers' Liability Act of Congress, and if there be jurisdiction in this court to entertain the suit, then such jurisdiction must rest solely upon said act, because there is no diversity of citizenship between the parties.

The facts, as they were developed by the testimony on the part of the plaintiff are as follows:

The decedent was in the employ of the defendant company, which is a common carrier, operating, among others, a line of railroad from Buffalo, in the state of New York, to Pittsburgh, in the state of Pennsylvania.

Decedent's title and duties were those of a master carpenter or master foreman of carpenters. He was required to engaged in and oversee carpenter work at different points along the line of railroad aforesaid, both in the state of New York and in the state of Pennsylvania. On the day when he was killed, he went from Titusville to Corry, where he met with his death. On that day, therefore, he was wholly within the state of Pennsylvania. After his arrival at Corry, he directed, and perhaps engaged in, certain work upon the roof of a roundhouse which was used for the storage of engines, and intended not only, perhaps, to carry on the work upon the roof of the roundhouse, but to repair a coal chute by means of which coal would be delivered to the engines. Lumber was needed for this purpose. He went some distance from the place where he was working to the office of the yardmaster at Corry to have the latter cause a certain car of lumber, which was then upon the storage track in the yard, to be moved from such storage track up to the point where the repairs were to be made. Owing to the fact that the shifting engine used in the yard was then in use at another point, there was considerable delay in the execution of the service which the decedent required. During such period of delay, he remained in or near the yardmaster's office. A tool or repair train having come into the yard, the yardmaster caused the same to shift the car of lumber from the storage track up to the point where the lumber was required. The decedent walked back in the direction of the place where he intended to work on or along the track, and in some way was struck by the car which contained the lumber.

After the plaintiff's evidence had closed, the defendant made a motion to dismiss the case for want of jurisdiction, alleging what may be briefly divided into two grounds: That the evidence did not show that the deceased was engaged in...