Mayor v. CENTRAL VERMONT RY. CO.
| Decision Date | 02 December 1927 |
| Citation | 26 F.2d 905 |
| Parties | MAYOR v. CENTRAL VERMONT RY. CO. |
| Court | U.S. District Court — Southern District of New York |
Alfred T. Rowe, of New York City, for plaintiff.
Wallace R. Foster, of New York City, for defendant.
This is an action under the Federal Employers' Liability Act (45 USCA §§ 51-59; Comp. St. §§ 8657-8665) to recover damages for personal injuries sustained by a brakeman in the employ of the defendant railway. Plaintiff concedes that this court has no jurisdiction of the action, and that it should now be dismissed, unless the injuries were sustained in interstate commerce. The case was tried before a jury, and a verdict of $45,000 was awarded to the plaintiff. The decision of the defendant's motion to set aside the verdict was reserved, and upon subsequent oral argument it was stipulated that the court should consider the question of jurisdiction.
The undisputed evidence is that the plaintiff was a brakeman employed on an interstate freight train operated by the defendant. On reaching a way station at Monson, Mass., plaintiff was directed by the conductor of the train to assist in a local switching operation. This consisted of removing a certain freight car from a side track and placing it on another siding, where it would be available to its consignee. The car and its contents were concededly in intrastate commerce; the movement was in no way connected with interstate commerce, except for the fact that it was to be accomplished by the interstate train. The car had never been part of that train, and the movement was not for the purpose of getting at other cars, but solely for the purpose of completing the intrastate shipment.
The interstate train was left standing on the main track, and its engine was detached and moved upon the main track for a distance of several rods, until it was at a point near the freight car, which was on a side track adjacent and parallel to the main track. A stake was then placed across the space between the two tracks, with one end resting on the front of the engine and the other end resting on the rear of the freight car. In this way the engine propelled the car along the side track and through a switch, placing it on the main track in front of the engine, to which it was coupled "on its nose." The siding upon which the car was to be placed was about a mile down the track in the direction in which the interstate train was to go.
Instead of completing this switching movement immediately, the engine with the car "on its nose" was moved back to the interstate train, and the entire train, consisting of the car in this position, the engine and the interstate cars, was then placed on another siding, so as to permit the passage of another interstate train. Thereafter the entire train was moved forward down the main track about a mile, where the intrastate car was shoved onto its siding, and the train proceeded to complete its trip.
The accident happened during the staking operation, while the engine was detached from the train and before the intrastate car had been placed completely on the main track and coupled to the nose of the engine. Plaintiff was directed to place the stake across the space between the main track and the siding, with one end on the front of the engine and the other on the rear of the intrastate car. He did this and the engine moved forward, shoving the car some distance, but not sufficient to put it completely through the switch and onto the main track. Both the car and the engine came to a stop, and plaintiff replaced the stake between them. The engine was again set in motion, and...
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