Pennsylvania R. Co. v. Logansport Loan & Trust Co.

• Decision Date: 23 November 1928
• Docket Number: No. 4073.,4073.
• Citation: 29 F.2d 1
• Parties: PENNSYLVANIA R. CO. v. LOGANSPORT LOAN & TRUST CO.
• Court: U.S. Court of Appeals — Seventh Circuit

29 F.2d 1 (1928)

PENNSYLVANIA R. CO. v. LOGANSPORT LOAN & TRUST CO.

No. 4073.

Circuit Court of Appeals, Seventh Circuit.

November 23, 1928.

Russell P. Harker, of Frankfort, Ind., for appellant.

Tinkham & Galvin, of Hammond, Ind., and Herbert H. Patterson, of Chicago, Ill., for appellee.

Before ALSCHULER, EVAN A. EVANS, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Appellee, as administrator of the estate of Harry Zimmerman, deceased, brought suit in the court below for damages for the death of Zimmerman, resulting from injuries received while working as a member of one of appellant's switching crews in its yards at Logansport, Indiana.

The complaint is in four paragraphs, the first, third and fourth alleging that at the time of the injury appellant was a common carrier by railroad engaged in interstate commerce and that Zimmerman was in appellant's employ and also engaged in interstate commerce. The second paragraph did not allege employment in interstate commerce.

The averments as to appellant's negligence differ somewhat in the four paragraphs, but each states as the cause of the injury the absence of appliances required by the Safety Appliance Act (45 USCA § 1 et seq.).

The principal question argued at the hearing and discussed in the briefs was whether or not Zimmerman, at the time of the injury, was engaged in interstate commerce. This question was submitted to the jury upon instructions which were not excepted to, and the jury returned a verdict for the plaintiff. No motion to direct a verdict because of insufficient evidence was made; but it is now insisted that the evidence fails to show employment in interstate commerce, and hence that the employment was intrastate as a matter of law.

If the question is saved it comes to this: Was there evidence before the jury sufficient to warrant a finding that Zimmerman, at the time of the injury, was engaged in interstate commerce?

There was evidence to the effect that appellant maintained at Logansport yards A, B, and C, and in yard A tracks numbered 47 and 57; that there was upon track 47 a number of defective cars, the twenty-seventh one of which was not equipped with couplers such as are required by the Safety Appliance Act, and which was chained to the car next to it, and it was desired to take this defective car out of track 47 and over to yard B to be repaired; that the engine was coupled to these 27 cars and they were pulled out upon a lead track, where the defective car was to be unchained and the other 26 cars returned to track 47; and that the engine and crew were then to take this defective car over to track 57 and there couple or fasten it to the cars on that track and proceed west with all of them, dropping the defective car at yard B and taking the cars from track 57 over to yard C; and that in going from yard A to yard B, and from B to C, it was necessary to pass over a part of the main track.

There was also evidence that the cars at that time on track 57 came from places outside of Indiana. One witness testified that the cars on track 57 "were from all directions; from the east end or possibly from the north; that Bradford Junction is the next division point east; * * * in Ohio." Another witness testified that "the cars on track 57 came from everywhere out of west bound trains; that track 57 was used at that time for what we call Peoria stuff going into Illinois, from trains from Ohio and other points east."

After the 27 cars were pulled out upon the lead...