Pennsylvania R. Co. v. Morrison

• Decision Date: 05 January 1925
• Docket Number: No. 4100.,4100.
• Citation: 3 F.2d 986
• Parties: PENNSYLVANIA R. CO. v. MORRISON.
• Court: U.S. Court of Appeals — Sixth Circuit

3 F.2d 986 (1925)

PENNSYLVANIA R. CO. v. MORRISON.

No. 4100.

Circuit Court of Appeals, Sixth Circuit.

January 5, 1925.

Norman A. Emery, of Youngstown, Ohio (Harrington, De Ford, Huxley & Smith, of Youngstown, Ohio, on the brief), for plaintiff in error.

Mr. Luther Day, of Cleveland, Ohio (Day & Day and Robert H. Dawson, all of Cleveland, Ohio, on the brief), for defendant in error.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

MACK, Circuit Judge.

The sole question for determination on this writ of error is whether or not the trial court erred in instructing the jury that the deceased, at the time of his death, was employed in interstate commerce.

Deceased was a brakeman in a shifting crew at defendant's Sharpsburg, Pa., yards. Just prior to the accident, which happened at 9:15 p. m., the engine in charge of this crew had pulled out a car loaded with freight for intrastate delivery, from a train consisting largely of interstate traffic cars. The accident, a collision, happened while this engine was pushing this single car ahead towards track No. 2. The conductor had received orders to have it put over the hump onto the so-called Panhandle classification track No. 2, whereon cars were placed at any time during the day and night. The cars so placed were gathered into a train that left once in 24 hours, ordinarily between 8:30 p. m. and midnight, for another classification yard 10 miles away. There they were to be reclassified and allocated to Panhandle trains to be hauled to their ultimate destinations.

But for the wreck, the car would have gone over the hump onto No. 2 track and become part of the train which pulled out at 12:30 a. m. for the 10-mile run, with 43 cars, many destined to points in other states. While the yardmaster could not testify positively which, if any, of these cars were on track No. 2 at 9:15 p. m., he did testify that some were undoubtedly there; that they were classifying cars at all hours of the day and night.

In these circumstances, the deceased, in our judgment, was, at the time of the collision, engaged in work so closely related to interstate commerce as to be practically a part of it. See Shanks v. Railroad Co., 239 U. S. 556, 558, 36 S. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797.

We reach this conclusion, not because the car in question had been a part of an interstate train before it was drilled out or because it was expected, after its ultimate allocation, to be a part of a train hauling it with...