New York Cent Co v. Marcone
| Citation | 74 L.Ed. 892,50 S.Ct. 294,281 U.S. 345 |
| Decision Date | 14 April 1930 |
| Docket Number | No. 212,212 |
| Parties | NEW YORK CENT. R. CO. v. MARCONE |
| Court | United States Supreme Court |
Messrs. Wm. H. Carey and Albert C. Wall, both of Jersey City, N. J., for petitioner.
Mr. A. Owsley Stanley, of Washington, D. C., for respondent.
The respondent, plaintiff below, brought suit in the circuit court of Hudson county, N. J., to recover under the Federal Employers' Liability Act (45 USCA §§ 51-59), for the death of his intestate. Judgment for plaintiff was affirmed by the Court of Errors and Appeals of New Jersey. 144 A. 635. This court granted certiorari October 21, 1929 (280 U. S 540, 50 S. Ct. 27, 74 L. Ed. —), on a petition which asserted as ground sfor allowing the writ that the court below had erroneously decided that there was evidence that at the time of the accident deceased was engaged in interstate commerce; that there was evidence of negligence on the part of petitioner; and that deceased's death was not due to his own negligence.
Decedent was employed in the roundhouse of petitioner at New Durham, N. J., in which there are thirty-two engine stalls, the doors to which are adjacent to and distant about 68 feet from a turntable. His duty was to fill the grease cups and pack the journal boxes of engines while in the roundhouse for inspection. On the night of the accident his hours of duty were from 7 p. m. to 3 a. m. He had worked on fourteen engines, using tools which were placed on an inspection wagon which was moved from engine to engine along a concrete runway extending in front of the engine stalls along the outer circumference of the roundhouse. He had lubricated and completed work on engine No. 3709 on track 8 before 11 o'clock in the evening. The last engine he worked on was No. 3835, standing on track 7, adjacent to track 8 on its left when facing the roundhouse. Fellow workmen, who had finished work on the same engine before the deceased, had been sent to do work outside the roundhouse. At about 2:15 a. m. deceased was instructed by his foreman or gang leader to work on engine 3835 and when finished to wait for the foreman at the inspection wagon, which was then located on the concrete runway in front of the open space lying between track 7 and track 8.
There was no eyewitness to the accident. At about 2:34 a. m. the decedent's body, with head and one arm severed, was discovered on the right-hand rail of track 8, adjacent to track 9, underneath the trucks of the tender of engine No. 3709, which was then being backed on track 8 from the roundhouse to the turntable. His cap was found between the rails of track 8, about 15 feet outside of the door of the roundhouse. Blood stains were found on or near the right-hand rail of track 8, beginning about 30 feet from the roundhouse and extending to the point where the body was found, some 60 feet or more from the door of the roundhouse.
The hostler who removed the engine from the roundhouse testified that before moving it he inspected track 8, that he saw no one on or near the track, that he then mounted the engine, started the air pump, turned on the headlight, rear light, and cab lights, started the engine bell ringing, and blew three blasts of the whistle as a warning that he was about to back the engine out and as notice to the operator of the turntable. At about 2:30 a. m., some ten minutes after mounting the engine, he backed the engine toward the turntable at the rate of about four miles an hour, looking behind as he did so. The operator of the turntable not responding to the signal, he stopped the engine, blew three more blasts, and when the turntable was set he again started the engine and proceeded until decedent's body was discovered.
When backing the engine the tender cut off the view of the track for a distance of about 12 feet from its rear end. The clearance between engine No. 3709, which killed deceased, and the sides of the door to the roundhouse was about 4 inches, and between it and the engine on track 7 was variously estimated from about 2 feet to about 3 feet 9 inches. There was much evidence that there was constant blowing of whistles and ringing of bells in the roundhouse in connection with moving the...
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