Quirk v. New York, C. & St. LR Co.

• Decision Date: 25 May 1951
• Docket Number: No. 10334.,10334.
• Citation: 189 F.2d 97
• Parties: QUIRK v. NEW YORK, C. & ST. L. R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

189 F.2d 97 (1951)

QUIRK v. NEW YORK, C. & ST. L. R. CO.

No. 10334.

United States Court of Appeals Seventh Circuit.

Argued May 18, 1951.

Decided May 25, 1951.

Paul M. Butler, Roland Obenchain, Jr., South Bend, Ind., Earl W. Shoemaker, Toledo, Ohio, for appellant.

Russell P. Harker, Frankfort, Ind., George N. Beamer, South Bend, Ind., for appellee. W. F. West, Cleveland, Ohio, Crumpacker, May, Beamer, Levy & Searer, Levy & Searer, South Bend, Ind., Harker & Irwin, Frankfort, Ind., of counsel.

Before MAJOR, Chief Judge, and DUFFY and SWAIM, Circuit Judges.

MAJOR, Chief Judge.

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 59, to recover damages for the death of plaintiff's decedent. The cause was submitted to a jury, which returned a verdict in favor of the plaintiff. During the course of the trial, defendant at appropriate times moved to dismiss the complaint for lack of jurisdiction. Such motions were denied by the court, with reservation. Subsequent to the jury verdict, defendant moved to set aside the verdict and to dismiss the action. This motion was allowed by the court's order of November 28, 1950, and it is from this order the appeal comes to this court.

The sole contested issue here is whether decedent at the time of the accident which resulted in his death was engaged in interstate commerce, and this issue depends upon whether at that time the decedent was engaged in his employment with the defendant. Obviously, the court's jurisdiction is dependent upon the solution of this issue. In this connection, plaintiff contends that the issue was one of fact and was settled by the jury's verdict. The court below, however, in dismissing the action held as a matter of law that the decedent at the time of the accident was not engaged in his employment so as to be entitled to the protection of the Act. 45 U. S.C.A. § 51 et seq. All the testimony (aside from certain stipulated facts) relative to this issue was offered by the plaintiff. There is no dispute as to any material fact, and we agree with the court below that the question for decision is one of law.

Defendant operated an interstate line of railroad through Muncie and Tipton, Indiana. It also operated an intrastate line between Michigan City, Indiana, and Indianapolis, Indiana, which crossed the interstate line at Tipton and passed through Sharpsville, Indiana. Decedent worked during a part of the day of his injury at Muncie, Indiana, on the interstate line but his injury occurred upon the intrastate line.¹

Decedent was a general foreman for defendant with supervision over track construction and maintenance, including operation of work trains. His headquarters were at Tipton but he lived at Sharpsville, six miles distant from Tipton. He had been furnished a one-man motor car by defendant for use in traveling over his work territory, which he also used, without objection on the part of defendant, in going between his home at Sharpsville and his headquarters at Tipton. Several days prior to, and including November 5, 1948, the day of his injury, he had been assigned to and engaged in the operation of a work train and three gangs of men at Muncie on a job, the completion of which required several more days. Decedent had instructions from his superior to stay with the work train. His duty required his presence so as to get the train out in the morning and put it away at night. Decedent spent the two nights previous to the day of his injury at his home in Sharpsville. This was not known to the defendant, although the decedent had previously under similar circumstances and with defendant's knowledge returned to his home for the night, apparently with no objection by the defendant. There is no evidence as to what form of conveyance decedent used going to Muncie on the day of his injury; however, it is shown that the gang working with the train at Muncie, over which decedent had supervision, was conveyed by defendant's truck from Tipton to Muncie. Also under decedent's supervision at Muncie was the Cammack gang, which arrived at Muncie previous to the Tipton gang. Decedent had been assigned to Muncie for the day following his injury, and it was his duty to be on hand prior to the arrival of the gang from Tipton. Decedent could have remained at Muncie at the expense of the defendant.

On November 5, 1948, the work at Muncie was suspended before the usual time on account of the weather. After the gang had quit work, decedent, without notifying his superior, left Muncie about 3:10 p.m., bound for his home in Sharpsville, so that he might see a basketball game in which his son was to participate. He rode from Muncie to Tipton, a distance of forty-two miles, by automobile owned and operated by a fellow employee. It was stipulated "that defendant did not furnish to plaintiff's decedent said automobile in which he rode from Muncie, Indiana, to Tipton, Indiana, and that said automobile was not owned, or operated, by defendant." At Tipton, decedent found that the motor car commonly used by him had been taken by one Collins, also an employee of the defendant. Decedent, some two hours after he had left Muncie, took another motor car, which had not previously been used by him, and started from Tipton for Sharpsville. On this journey, the motor car driven by the decedent and the one driven by Collins collided, from which collision the decedent sustained injuries resulting in his death.

Admittedly, decedent was an employee engaged in interstate commerce up until the time he quit work at Muncie. Whether such relation existed at the time of his fatal injury is our question. When an employment relation once established ceases to exist presents a perplexing question, as is evidenced by the numerous cases wherein the question has been considered. The principles to be applied have often been stated but the difficulty is making their application to the facts of a particular case.

In New York Central & Hudson River Railroad Co. v. Carr, 238 U.S. 260, 263, 35 S.Ct. 780, 781, 59 L.Ed. 1298, the court stated: "If he is hurt in the course of his employment while going to a car to perform an interstate duty, or if he is injured while preparing an engine for an interstate trip, he is entitled to the benefits of the Federal act, although the accident occurred prior to the actual coupling of the engine to the interstate cars." And on the same page: "Each case must be decided in the light of the particular facts with a view of determining whether, at the time of the injury, the employee is engaged in interstate business, or in an act which is so directly and immediately connected with such business as substantially to form a part or a necessary incident thereof."

A case often cited and relied upon is that of Erie Railroad Co. v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057. In that case, the Supreme Court reversed the lower court which had held that the employee was not engaged in interstate commerce at the time of his injury. Concerning the facts, the court stated, 244 U.S. at page 171, 37 S. Ct. at page 356, 61 L.Ed. 1057: "In concluding his work for that day the employee took his engine to the place where it was to remain for the night and started to leave the yard. His route lay across some of the tracks, and while passing over one he was struck by an engine and received injuries from which he soon died." The court in deciding the issue against the railroad stated, 244 U.S. at page 173, 37 S.Ct. at page 557, 61 L.Ed. 1057: "In leaving the carrier's yard at the close of his day's work the deceased was but discharging a duty of his employment. Citing case. Like his trip through the yard to his engine...