Shanks v. Delaware, L.&.W.R. Co.

• Decision Date: 26 March 1915
• Citation: 214 N.Y. 413,108 N.E. 644
• Court: New York Court of Appeals Court of Appeals
• Parties: SHANKS v. DELAWARE, L. &. W. R. CO.

214 N.Y. 413

108 N.E. 644

SHANKS

v.DELAWARE, L. &. W. R. CO.

Court of Appeals of New York.

March 26, 1915.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Bruce Shanks against the Delaware, Lackawanna & Western Railroad Company. From an order of the Appellate Division (163 App. Div. 565,148 N. Y. Supp. 1034) reversing a judgment of Trial Term in favor of the plaintiff and directing the final judgment dismissing his complaint, he appeals. Affirmed.

Seabury and Cardozo, JJ., dissenting.

Joseph A. Shay, of New York City, for appellant.

Frederick W. Thomson, of New York City, for respondent.

CHASE, J.

This action is brought under the federal Employers' Liability Act of April 22, 1908 (35 Stat. at L. 65, c. 149; U. S. Comp. St . 1913, §§ 8657-8665), to recover damages for personal injuries sustained by the plaintiff while engaged as an employé of the defendant in a shop near Hoboken, N. J.

The defendant is a railroad corporation and common carrier, and at the times hereinafter mentioned was engaged in interstate commerce. It was also engaged in intrastate commerce. Its road extends from Hoboken, N. J., to Buffalo, N. Y., and passes through, and is in part located in, the state of Pennsylvania. The federal Employers' Liability Act provides:

‘That every common carrier by railroad while engaging in commerce * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, * * * resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed * * * or other equipment.’

The defendant has but two shops devoted particularly to the repair of locomotive engines. One is the shop located near Hoboken, N. J., and the other is located at Scranton, Pa. The plaintiff was employed as a merchanic, and his principal work was in running a shaping machine, where he shaped parts to be used in the repair of locomotives that were in immediate need of repair. His work was known as ‘rush work.’ His work was generally, but not exclusively, in the repair of locomotives used in interstate commerce. The power was applied to the shaping machine used by him from a countershaft and pulley attached by hangers to girders which were about 18 feet above the floor of the shop. The defendant desired to move such countershaft for one reason to make room for another shaping machine, and to do so it was necessary to take the countershaft down and change the hangers on which it was suspended. On top of the girders from which the countershaft was suspended were the rails constituting the track upon which a traveling crane of heavy weight was moved. On a Sunday morning the plaintiff, working over time, with a helper, was directed to move such countershaft, and a platform or scaffold was erected on which to do such work. The countershaft was taken down and placed upon the floor, and, while the plaintiff was engaged in making new holdes in one of the girders for the purpose of fastening one of the hangers at its new proposed location, and while he had his right hand over the rail on the girder in which he was making the holes, the crane was moved along without warning (as it is alleged), and a wheel cut off his hand. In his effort to save himself he involuntarily threw his left hand over the rail in front of the wheel, and that, too, was cut off.

An examination of the record satisfies us that the question of the defendant's negligence was one of fact. The one important question for our determination in this action under the federal Employers' Liability Act is whether the plaintiff at the time of the accident was, within the meaning of that act, engaged in interstate commerce. The defendant is not liable under the act unless the plaintiff suffered injury while he was employed by the defendant as a common carrier in interstate commerce. Illinois Central Railroad Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163.

In the Behrens Case it was held that a fireman employed on a switch engine in the city of New Orleans, the crew of which with said engine handled interstate and intrastate traffic indiscriminately, frequently moving both at once, and at times turning directly from one to the other, was not engaged in interstate commerce or entitled to recover under the act for injuries arising by a collision when moving several cars loaded with freight which was wholly intrastate and upon completing that movement was to have gathered up and taken to other points several other cars as a step or link in their transportation to various destinations within and without the state.

Whether the plaintiff can recover under the act depends upon whether he was personally engaged in interstate commerce at the time of the injury. That he was not so directly engaged must be conceded. He claims, however, that he was so engaged within the interpretation given to the act in Pedersen v. D., L. & W. R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. In that case the plaintiff sought to recover damages for personal injuries against the same defendant as in the case now before us and in connection with commerce, intrastate and interstate, carried on by it over the same system of railroad. In that case the plaintiff was employed as an ironworker in connection with the repair of a bridge used by the defendant for railroad purposes near Hoboken. The repair consisted of the removal of a girder in a bridge in regular use and the insertion of a new one in its place. The plaintiff at the time of the accident was engaged in carrying from a tool car to the bridge certain bolts or rivets which were to be used in such repair. The bridge was used in interstate and intrastate commerce. The plaintiff was struck by an intrastate passenger train, and it was alleged that such train did not give any warning. Recovery was sustained, and the court say:

‘That the defendant was engaged in interstate commerce is conceded, and so we are only concerned with the nature of the work in which the plaintiff was employed at the time of his injury. Among the questions which naturally arise in this connection are these: Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars, and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. * * * We are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. * * * The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged? * * * Of course, we are not here concerned with the construction of tracks, bridges, engines, or cars which have not as yet become instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities and during their use as such. True, a track of bridge may be used in both interstate and intrastate commerce, but, when it is so used, it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce.’ 229 U. S. 151, 33 Sup. Ct. 649, 57 L. Ed. 1125, Ann. Cas. 1914C, 153.

It is of great importance to employers and employés that rules be established by which it can be determined with reasonable certainty whether a person at a given time is engaged in interstate or intrastate commerce. It does not seem to us that each specific act of employment by a carrier can be satisfactorily defined and classified by generally and unqualifiedly including as a part of interstate commerce every act of employment closely connected therewith, and every act the performance of which is not a matter of indifference in such commerce. It is not a matter of indifference to interstate commerce whether ore is mined and iron is manufactured, but employment in mining and manufacturing is so remote from the employment intended by the act that it would not we assume be claimed by any one that persons so remotely employed, even if so employed by the carrier, are engaged in interstate commerce within the meaning of the act. In every case a person, to be protected by the federal Employers' Liability Act, must, by the express terms of the act, be engaged in commerce.

Conceding, as was held in the Pedersen Case, that a person directly engaged in assembling material for the immediate repair of a bridge necessarily used in interstate commerce by a carrier is engaged in interstate commerce, it does not follow that a person engaged at a shaping machine in a repair shop is engaged in interstate commerce; at least unless it appears that the work he is doing is for the immediate repair of a locomotive or other instrumentality actually engaged in interstate commerce. Making parts to be used in a locomotive is a step further removed from commerce than the assembling of parts for the locomotive, and corresponds to the work of making bolts and rivets for use in bridge repairs. If the plaintiff had been injured while engaged at the shaping machine in shaping parts for immediate use in a locomotive engaged in interstate commerce, it may be assumed that his claim would come within the terms of the...