Marcone v. N.Y. Cent. R. Co.

• Decision Date: 04 February 1929
• Docket Number: No. 65.,65.
• Citation: 144 A. 635
• Parties: MARCONE v. NEW YORK CENT. R. CO.
• Court: New Jersey Supreme Court

144 A. 635

MARCONE

v. NEW YORK CENT. R. CO.

No. 65.

Court of Errors and Appeals of New Jersey.

Feb. 4, 1929.

Appeal from Circuit Court, Hudson County.

Action by Donato Marcone, administrator of the estate of Joseph Marcone, deceased, against the New York Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wall, Haight, Carey & Hartpence, of Jersey City, for appellant.

Alexander Simpson, of Jersey City, for respondent.

LLOYD, J. This is an appeal by the defendant from a judgment in favor of the plaintiff in the Hudson County Circuit Court. The action was under the Federal Employers' Liability Act (45 USCA §§ 51-59) to recover damages for the death of an employee, claimed to be due to the negligence of the defendant while deceased was in interstate commerce employment. In addition to certain alleged trial errors, appellant contends that the case should have been controlled by the court through nonsuit on, two grounds: (1) That the deceased was not at the time in interstate commerce; and (2), even if he were, that no negligence was shown.

Deceased was one of a gang of men whose duties were to make minor repairs on engines and to lubricate the engine boxes and grease cups. He had been at this work for approximately a year. On July 27, 1926, he began work at 7 o'clock in the evening, and his duties were to end at S o'clock the following morning. He worked on a number of engines during the night, the last one of which appears to have been No. 3825, an engine in interstate commerce. At 2:15 o'clock of that morning he was told by his foreman to finish his work on that engine and wait there for further orders. While standing on or near track designated as No. 8, he was struck and killed by engine No. 3709 backing out of the roundhouse without warning. No one saw the deceased when he was killed, nor did any one actually see what he was last doing.

It is claimed by the appellant that in this situation there was no proof that at the time of the accident his work on engine No. 3825, which was used in interstate commerce, had rot been finished, and that plaintiff's proofs failed to establish any negligence in the defendant.

We think there was sufficient evidence in the case to justify a finding that he was engaged in interstate commerce when killed. He had been told to finish his work on an engine in interstate commerce. His duties generally were in both interstate and intrastate commerce; his hours of duty had not yet...