Krysiak v. Pennsylvania R. Co.

• Decision Date: 07 February 1921
• Docket Number: 2574.
• Parties: KRYSIAK v. PENNSYLVANIA R. CO. et al.
• Court: U.S. Court of Appeals — Third Circuit

270 F. 758

KRYSIAK v. PENNSYLVANIA R. CO. et al.

No. 2574.

United States Court of Appeals, Third Circuit.

February 7, 1921

Hershenstein & Finnerty, of Jersey City, N.J. (Leonard F. Fish, of New York City, of counsel), for plaintiff in error.

Albert C. Wall and John A. Hartpence, both of Jersey City, N.J., for defendants in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

Krysiak an employe of the Pennsylvania Railroad Company, was run down and killed by a train on its main line of tracks in Jersey City, within yard limits. In this action, brought under the Federal Employers' Liability Act (Comp. St. Secs 8657-8665) his administratrix charged the defendant with negligence in failing to provide its servant with a reasonably safe place in which to work and in operating its train at great speed without warning him of its approach. The defendant had judgment on a directed verdict. By this writ the plaintiff brings the judgment here for review on the two grounds upon which the verdict was directed: First, that the decedent was not employed in interstate commerce at the time of his injury; and, second, that the plaintiff failed to prove negligence on the part of the defendant.

The facts out of which these questions arose were briefly these Krysiak was at work during the night as an engine fire-cleaner in an ash-pit. His employment, being upon engines used in both interstate and intrastate commerce, was concededly interstate in character. Instead of ascending a near-by stairway leading to a street which the defendant had provided for the safety of its employes on leaving their work, Krysiak, on leaving his night's work, pursued a course, for his personal convenience, across the yard tracks and main tracks of the Railroad Company. The earth thereabout was packed down by the feet of many employes, who were in the habit of leaving the yard in any direction they chose, but it was not shown that there was a beaten pathway across the tracks suggestive of invitation or permissive way.

It was early in the morning; the day was dark and foggy. Krysiak stepped between the rails of one of the main tracks and was struck by a train coming from behind an obstruction at a rapid though not unusual rate of speed without giving warning.

At the trial, no issue was joined on the plaintiff's allegation of negligence (within its ordinary meaning) that the defendant failed 'to provide a reasonably safe place for the plaintiff's intestate to carry out his employment,' for it was not disputed that the defendant had not only provided him with a safe ash-pit in which to work, but had also provided him with a safe exit from his place of work. The plaintiff, however, relied upon the averment as tendering an issue of negligence, not within its literal meaning, but within her contention that in leaving the defendant's yard at the close of his night's work Krysiak was still engaged in his employment in the sense that he was but discharging a duty of his employment and was but pursuing a necessary incident to his work which partook of its interstate character, and that his injury, while so employed, brought him within the Act under the rule laid down in N. C.R. Co. v. Zachary, 232 U.S. 248, 34 Sup.Ct 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159, and Erie R. Co. v. Winfield, 244 U.S. 170, 37 Sup.Ct. 556, 61 L.Ed. 1057, Ann. Cas. 1918B, 662 .

In asking the trial court-- and later this court-- to apply the law of these cases to the case at bar, the plaintiff seeks to extend the law one step farther than the rule has gone. In the Zachary and Winfield Cases the injured employes were still about their employer's business when leaving their work and their departure was necessarily incident to their work and necessarily partook of its character. But here, the employe declined to take the safe way provided for him on leaving his work-- that is, he declined to take his departure and thereby complete his employment in the way provided-- but departed by another way more convenient to him in following his own affairs.

We are particular to note just here that we are not passing on a case where an employe, leaving employment in interstate commerce, selects one of several more or less dangerous means of exit from his place of employment because his employer had provided him no safe means; but we are passing on a case where the employer had provided a safe way out and the employe, ignoring it, selected a dangerous way. At that moment, we think,...