Onley v. Lehigh Valley R. Co.

• Citation: 36 F.2d 705
• Decision Date: 09 December 1929
• Docket Number: No. 81.,81.
• Parties: ONLEY v. LEHIGH VALLEY R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

36 F.2d 705 (1929)

ONLEY v. LEHIGH VALLEY R. CO.

No. 81.

Circuit Court of Appeals, Second Circuit.

December 9, 1929.

Sansone & Gelb and Sol Gelb, all of New York City, for plaintiff.

Alexander & Green, of New York City (Clifton P. Williamson and H. S. Ogden, both of New York City, of counsel), for defendant-appellee.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

CHASE, Circuit Judge (after stating the facts as above).

Bearing in mind that the plaintiff has the burden of showing that he was engaged in interstate commerce when injured, we find him doing work which itself sheds no light whatever upon the question to be decided. Testing a fire hose on an engine might be employment either in interstate commerce or intrastate commerce, depending upon whether it was so related definitely to one or the other that it formed a part of it. Since the immediate work he was doing is colorless, we must look for its interstate character, either in what he had previously done or what he was about to do.

The future is barren of assistance, for he was not employed in preparing for some definite movement, so that his work was a necessary incident of it, and became of like character with it; and nothing is known but that the plaintiff, and we may assume the engine, would have, in the ordinary course of events, done such switching as would have been required. We do not know what would have been required, except that it might have been wholly interstate switching, wholly intrastate, or partly both. Obviously the plaintiff has not thus shown himself to have been engaged in interstate commerce when injured. Minneapolis & St. Louis Railroad Co. v. Winters, 242 U. S. 353, 37 S. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54. As is said in Erie Railroad Company v. Welsh, 242 U. S. 303, 37 S. Ct. 116, 118, 61 L. Ed. 319, where the future was shown to have held for the plaintiff immediate employment in interstate commerce, "the mere expectation that plaintiff would presently be called upon to perform a task in interstate commerce is not sufficient to bring the case within the act."

Accordingly we must look to the past for all the help we are to get. We find nothing to indicate that any operation of the morning's interstate or intrastate switching was unfinished when the plaintiff stopped for lunch. His next work in oiling the engine is as devoid of significance, in and of itself, as testing the fire hose. We have no occasion to consider whether this oiling was made necessary by the morning's work, and so related to it that it took on the character of that work as a whole, Erie Railroad Company v. Winfield, 244 U. S. 171-173, 37 S. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662; for the oiling was finished without injury to the plaintiff. The hose testing was a detached and isolated piece of work, wholly unrelated to the oiling, and not made...