Matthison v. Payne

• Decision Date: 21 November 1922
• Docket Number: No. 40.,40.
• Citation: 118 A. 771
• Parties: MATTHISON v. PAYNE, Director General of Railroads.
• Court: New Jersey Supreme Court

118 A. 771

MATTHISON

v. PAYNE, Director General of Railroads.

No. 40.

Supreme Court of New Jersey.

Nov. 21, 1922.

Appeal from Circuit Court, Hudson County.

Action by Nicholas Matthison, by next friend, against John Barton Payne, Director General of Railroads, etc. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued November term, 1921, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

Colling & Corbin and George S. Hobart, both of Jersey City (Edward A. Markley, of Jersey City, of counsel), for appellant.

Ziegener & Lane and Alexander Simpson, both of Jersey City (Harry Lane, of Jersey City, of counsel), for respondent.

KALISCH, J. The judgment under review is founded upon a verdict of a jury rendered in the circuit court for the plaintiff respondent, and against the defendant appellant, in an action brought against the latter by the former, under the federal Employers' Liability Act of April 22, 1908 (U. S. Comp. St. §§ 8657-8665), to recover damages for injuries sustained by him, as a result of a collision of a locomotive engine of the Lehigh Valley Railroad Company, on which he was riding, with a railroad car in the East Oak Island yard of that company, through the negligence of an employee of the defendant. From his Injuries the plaintiff became a lunatic and sued by next friend.

The legal questions to be determined upon this appeal arise out of refusals of the trial judge to grant defendant's counsel's motions, for a nonsuit at the close of the plaintiffs case and for a direction of a verdict for defendant at the close of the entire case. Both of these motions, as we glean from the brief of counsel with defendant, are rested upon the assumption, firstly, that the plaintiff was injured through the negligent act of a volunteer servant, for which act the defendant Was not legally bound to respond in damages; secondly, that neither the plaintiff nor the defendant, at the time of the plaintiff's injury, was engaged in interstate commerce.

It is obvious that the proper determination of both of these claims involves mixed questions of law and fact, and hence depends largely, if not altogether, upon a solution of a preliminary inquiry, whether there was any testimony tending to show a state of facts from which a jury might properly find that the servant's act, for the negligent performance of which it is sought to hold the appellant answerable, was either within the scope of such employment or was being performed under a special authorization of the master, and further whether or not, at the time of the injury, the plaintiff was engaged in interstate commerce. From the record it appears that the plaintiff was in the employ of the railroad company in its roundhouse, which was about a quarter of a mile from Oak Island Junction. His duties were to keep the fires up and water in the boilers of the engines which were run Into the roundhouse, and to give them general care. The engines were used in interstate and intrastate commerce.

It was the general practice of the company to run a train known as the "Modoc" from the terminal in Jersey City, for the purpose of gathering up its employees at various points along the route, and convey them to or near the respective places of their employment. It was customary for the plaintiff to take this train to go to his night work at the roundhouse. On the 23d of March, 1919, he boarded the train to that end, but the train did not finish its journey, and discharged all its employees on board at East Oak Island. The premature discharge of all on board it appears was due to the fact that, just before reaching East Oak Island, the conductor of the train received word from the train dispatcher that an engineer had been left behind, and to go back and get him, and thereupon, instead of running the train to Oak Island Junction, it stopped at East Oak Island. It further appears that for more than a year it had been the constant practice to run the train to East Oak Island, known also as "Central Crossing," that place being the nearest point to the roundhouse where the plaintiff worked, a distance of about a quarter of a mile. Where the train stopped was about a mile from the roundhouse.

One Hanafin was the fireman of engine No. 3165, and one Nelson was its engineer, and it was the latter who was left behind, and in order to fetch him the "Modoc" stopped at East Oak Island, discharged the employees on board; and turned back. Engine 3165 was at the place where the "Modoc" stopped and discharged the employees, among whom were Hanafin and the plaintiff. Hanafin went to his engine, and at his request he and the plaintiff boarded the engine, so that the latter might be taken as far as Central Crossing, which was near to the roundhouse where he worked. Hanafin operated the engine, going slow, and right here it will serve a useful purpose to give his version of what he did immediately before he started on the journey to Central Crossing. He testified:

"When I got to the foot of the hump, I stop-pod and told Kelly. I said, 'Kelly, I am going to run Matthison up to Central Crossing.' 'Go ahead,' he said."

Kelly was Hanafin's conductor. Rule 1060, relating to the duties of firemen, reads as follows:

"They will take charge of engines during the absence of engineers, but must not run them unless, in emergency, they are directed to do so by conductors or some one in authority."

Now there was proof that it was a general practice to take the employees to their respective places of employment; that the train was run as far as Central Crossing that Hanafin, the fireman, had often operated the engines carrying employees to Central Crossing, and that it was a common practice for the firemen of engines to run them in the absence of their engineers, which practice was known to the representatives of the defendant, such as the yardmaster and conductors; that on the night in question the train stopped a mile away from the place where the...