Lehigh Valley R. Co. v. Doktor
| Citation | 290 F. 760 |
| Decision Date | 28 June 1923 |
| Docket Number | 2987. |
| Parties | LEHIGH VALLEY R. CO. v. DOKTOR. |
| Court | U.S. Court of Appeals — Third Circuit |
Geo. S Hobart, Edward A. Markley, Chas. W. Broadhurst and Collins & Corbin, all of Jersey City, N.J., for plaintiff in error.
Joseph E. Stricker, of Perth Amboy, N.J., for defendant in error.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
Doktor an employe of the defendant railroad company, was run over by a draft of cars while at work in the company's freight yard in Perth Amboy, New Jersey. He brought this action for damages under the Federal Employers' Liability Act (35 Stat. 65; 36 Stat. 291 (Comp. St. Secs. 8657-8665)) and had a verdict and judgment. The case is here on the defendant's writ of error.
The formal matter which the defendant assigns as error was the court's refusal to grant its motion for binding instructions. The motion was based on several grounds covering substantially the whole case. These grounds are the real questions here for review. We shall discuss them separately. The first was whether there is any evidence which brings the case within the Federal Employers' Liability Act.
The trial court charged the jury, as matter of law, that at the time of the injury the plaintiff was employed and the defendant railroad company was engaged in interstate commerce. Thereby, and to that extent, the court sustained the action under the Act. The defendant contends that, on the testimony, this instruction was error because, at most, the question was one of fact for the jury
Doktor was removing a spike from a switch preliminary to the movement of a draft of fourteen cars laden with coal. As an article of commerce the coal had its origin in Pennsylvania and was consigned, as the defendant contends, to the shippers at Perth Amboy, New Jersey, there to await reconsignment orders and reshipment, either by rail or water. On this testimony the defendant maintains that the coal had arrived at its destination and, therefore, under Kozimko v. Hines (C.C.A.) 268 F. 507, 508, and Schauffele v. Director General (C.C.A.) 276 F. 115 it had lost the character of interstate commerce; and so also had the cars as instrumentalities of interstate commerce. In the cited cases we followed C., B. & Q.R. Co. v. Harrington, 241 U.S. 177, 36 Sup.Ct. 517, 60 L.Ed. 941, and Lehigh Valley R. Co. v. Barlow, 244 U.S. 183, 37 Sup.Ct. 513, 61 L.Ed. 1070, and held that when cars, at one time engaged in interstate commerce arrive at their destination, they lose the character of interstate commerce; and that, when injuries occur in later movements which are purely local, recovery cannot be had under the Federal Employers' Liability Act.
And such, on first view, was the character of the coal and cars in question, for on arriving at Perth Amboy, the point of consignment, it would seem they had reached their destination and had passed out of interstate commerce. If these were all the facts in the case we should feel called upon to discuss the question of destination as influenced by contemplated further movements, argued at length in the briefs. But discussion of this question can be avoided and the point decided on the fact that of the fourteen cars there was one consigned, not to Perth Amboy, but to Perth Amboy Piers, a place a mile or more beyond. Obviously this car with its load of coal had not arrived at its destination when the plaintiff was hurt. It was still in interstate commerce. Its movement at the time of the plaintiff's injury was not local. It had yet to be delivered to the point named in the waybill. That point was its destination. After the accident the car was moved to Perth Amboy Piers and its coal was loaded on scows and consigned to New York.
On these facts we are of opinion that even if but one car of the draft was in interstate commerce, the court committed no error in instructing the jury as matter of law that the plaintiff in preparing for switching the draft and the defendant in moving the draft were engaged in interstate commerce. Davis v. Dowling (C.C.A.) 284 F. 670.
The next two grounds of the defendant's motion for a directed verdict were that negligence on the part of the defendant had not been proved and that the accident was due solely to the contributory negligence of the plaintiff.
Doktor was a member of a track gang repairing a spur track cut off from traffic by a spiked switch. Trainmen desired to move a draft of cars from another track to this track. To permit this to be done, Doktor went to the switch to remove the spike. While doing so the train came upon him and inflicted serious injuries. This suit followed. In his complaint the plaintiff averred that the defendant owed him the duty of warning him of the approach of the draft and charged that the defendant had violated this duty by failing to give him warning by bell or whistle from the locomotive or by whistle from the gang foreman. At the trial the plaintiff, in support of his averment of duty, testified there was a yard custom in such cases to give warning by whistle of the locomotive and he produced six witnesses whose testimony, though varying in strength, could be regarded as sustaining this contention. He also introduced evidence that in a track gang the workmen work and the foreman watches and on the approach of danger the foreman warns the gang by a whistle which he carries for that purpose.
The evidence of the defendant's custom and therefore of its duty to warn trackmen by locomotive whistle was sharply controverted; but the custom and the corresponding duty to give warning by whistle of the foreman was admitted by the defendant, with the explanation, however, that it extends only to men immediately within the gang and not to one who has gone away to perform a separate task, and that in such event the custom is for the man to look out for himself.
This case raises no new question of law. It is distinguished from Aerkfetz v. Humphreys, 145 U.S. 418, 12 Sup.Ct. 835 36 L.Ed. 758, and Connelley v. Pennsylvania R. Co., 228 F. 322, 142 C.C.A....
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