Kozimko v. Hines

• Court: U.S. Court of Appeals — Third Circuit
• Citation: Kozimko v. Hines, 268 F. 507 (3rd Cir. 1920)
• Decision Date: 12 November 1920
• Docket Number: 2587.
• Parties: KOZIMKO v. HINES, Director General of Railroads.

268 F. 507

KOZIMKO v. HINES, Director General of Railroads.

No. 2587.

United States Court of Appeals, Third Circuit.

November 12, 1920

Frank M. Hardenbrook and Charles M. Egan, both of Jersey City N.J., for plaintiff in error.

William A. Barkalow, of New York City (Charles E. Miller and George Holmes, both of New York City, of counsel), for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

Of the several issues here involved the one on which recovery primarily depends is whether the plaintiff's decedent was at the time of his injury employed in interstate commerce within the meaning of the Federal Employers' Liability Act. Act of April 22, 1908, 35 Stat. 65, c. 149, amended by Act of April 5, 1910 (Comp. St. Secs. 8657-8665), printed in full in Second Employers' Liability Cases, 223 U.S. 6, 32 Sup.Ct. 169, 56 L.Ed. 327, 38 L.R.A. (N.S.) 44.

The stipulated facts are these:

For two weeks prior to the accident the decedent had been employed at night in keeping up fires used in operating a crane located at Port Johnson, Bayonne, New Jersey. For the same period the crane had been used in the daytime exclusively to unload coal from cars to the ground 'for use by the Director General in operating the Central Railroad of New Jersey.' The coal, having been transported from outside the State of New Jersey, had, prior to being unloaded, 'reached its destination * * * in the storage yard' of the railroad company. 'This coal was to be used to accumulate a reserve supply of coal in view of the then threatened coal strike, and was to be used, in the event of the normal supply being cut off, for any purpose that coal was needed in the operation of said railroad.'

It being possible that some of the coal thus stored might be used for coaling engines engaged in interstate commerce, the parties stipulated further that 'the nearest coaling station to said storage pile was about one and one-half miles distant from the place where the said crane was being operated and said coal unloaded,' and that 'the said coaling station was used to coal freight engines used indiscriminately in interstate and intrastate commerce.'

The place where the accident happened was about seven miles from the place where the decedent worked. In going to the station to take a train for the place of his employment, the decedent, instead of going on the public streets for a distance of several blocks, walked toward the station along the railroad tracks. While doing so, he was struck by an engine moved in a negligent manner, it is alleged, and was killed.

On this showing the District Court found that the decedent was not at the time employed in interstate commerce, and accordingly entered judgment of non-suit. The plaintiff sued out this writ of error.

We lay aside the question whether the act of the decedent in going upon the tracks on the way to his night's work was a necessary incident of his work and therefore partook of its character, Nor. Car. R.R. Co. v. Zachary, 232 U.S 248, 34 Sup.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159; Erie R.R. Co. v. Winfield, 244 U.S. 170, 37 Sup.Ct. 556, 61 L.Ed. 1057, Ann. Cas. 1918B, 662; and inquire directly whether the crane was used in interstate commerce, for upon the use of the crane with respect to commerce depends in any event the character of the decedent's employment at the time of his death.

On the stipulated fact that the coal had reached its destination prior to being unloaded, the learned trial judge held that it had lost its character of interstate commerce, and that in consequence the crane, when sometime afterward it handled the coal, was not an instrumentality of commerce of that kind resting his decision on C., B. & Q.R.R. Co. v. Harrington, 241 U.S. 177, 36 Sup.Ct. 517, 60 L.Ed. 941, and Lehigh Valley R.R. Co. v. Barlow, 244 U.S. 183, 37 Sup.Ct. 515, 61 L.Ed. 1070. In these cases-- both injured employes being members of switching crews-- the Supreme Court held that the several acts of switching coal cars from storage tracks to coal sheds where later the coal was to be unloaded and placed in bins or chutes for supplying locomotives engaged in interstate and intrastate traffic were not interstate movements; and that employes engaged in such movements, like employes engaged by a carrier in mining coal in the carrier's colliery destined for use in interstate commerce, D., L. & W.R.R. Co. v. Yurkonis, 238 U.S. 439, 35 Sup.Ct....