Stiedler v. Pennsylvania R. Co.

• Decision Date: 01 March 1920
• Docket Number: No. 50.,50.
• Citation: 109 A. 512
• Parties: STIEDLER v. PENNSYLVANIA R. CO.
• Court: New Jersey Supreme Court

109 A. 512

STIEDLER

v. PENNSYLVANIA R. CO.*

No. 50.

Court of Errors and Appeals of New Jersey.

March 1, 1920.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Alfred Stiedler against the Pennsylvania Railroad Company. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.

Vredenburgh, Wall & Carey, of Jersey City, for appellant.

Alexander Simpson, of Jersey City, for appellee.

MINTURN, J. While employed by defendant company, as a painter, at Homestead, in the painting of a metal pole in use by defendant for the purpose of carrying its electric wires between New York City and the Manhattan Transfer station, in this state, by means of which the cars of the company were operated in interstate commerce, the plaintiff met with the accident complained of, and this suit was instituted under the provisions of the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) to recover for the consequent damages.

The situation presented was that a colaborer in the work of painting the pole was located beneath the plaintiff, and his duty it was to paint the opposite side of the pole to that which the plaintiff was engaged in painting. Instead of pursuing that method of performing his work, however, he proceeded to paint directly under the plaintiff without plaintiff's knowledge, the result of which was that, while in the act of attempting to descend, the plaintiff placed his foot upon one of the cross-pieces or latticework of the pole, reached out for his paint pot, his foot slipped upon the wet paint, and he fell backwards. In the effort to recover himself his hands came in contact with the live wires connected with the pole, and from that contact he received an electric shock which necessitated the amputation of his arm and otherwise injured him.

The gravamen of the case manifestly presented the negligence of a fellow employe. The jury found for the plaintiff, upon which verdict judgment was entered, and from which judgment this appeal is taken. It is contended that the action was not properly brought under the federal statute. We think it was subject to the federal act, for the reasons we have expressed in Tonsellito v. N. Y. C. R. R. Co., 87 N. J. Law, 651, 94 Atl. 804.

The cases there referred to, and particularly Pedersen v. D., L. & W. R. R., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, present the rationale which evince the distinctions upon which the provisions of that act are called into operation and become applicable to the case at bar. Nothing can be gained by a further elaboration of the subject, except to remark that upon the test laid down in the Pedersen Case, and the eases which have followed it, this plaintiff was engaged in work upon the upkeep and preservation of an instrumentality of interstate commerce.

As the learned Chief Justice remarked In Lincks v. Erie R. R. Co., 91 N. J. Law, 168, 103 Atl. 177:

"The test is whether the particular work upon which the employe was engaged at the very time of the accident was a part of the interstate commerce in which the carrier was engaged."

To the same effect Louisville, etc., R. R. v. Nethertou, 175 Ky. 159, 193 S. W. 1035; Coal V. C. R. Co. v. Deal, 231 Fed. 604, 145 C. O. A. 490. To same effect, see Southern Pac. Ry. v. Ind. Acc. Co., 251 U. S. 259, 40 Sup. Ct. 130, 64 L. Ed.

It is also contended that no or not sufficient negligence was proven, and that plaintiff assumed the risks incident to his work.

We think there was ample proof in the case from which a jury might infer negligence upon the part of the coemployfi. Such negligence is contemplated as the basis for an action under the federal act; and the common-law doctrine of assumption of risk from the negligence of fellow servants is thereby abolished, and the plaintiff's contributory negligence presents merely a basis for the reduction of damages, based upon the rule heretofore peculiar to Admiralty....