Tepper v. New York, N.H.&H.R. Co.

• Decision Date: 05 July 1924
• Citation: 238 N.Y. 423,144 N.E. 668
• Parties: TEPPER v. NEW YORK, N. H. & H. R. CO.
• Court: New York Court of Appeals Court of Appeals

238 N.Y. 423

144 N.E. 668

TEPPER

v.NEW YORK, N. H. & H. R. CO.

Court of Appeals of New York.

July 5, 1924.

Action by Dorothy Tepper, as administratrix, etc., against the New York, New Haven & Hartford Railroad Company. From a judgment of the Appellate Division (208 App. Div. 789,203 N. Y. Supp. 955), affirming, two of the justices dissenting, a judgment in favor of plaintiff entered on verdict, defendant appeals.

Reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division, Second department.

John M. Gibbons, of New York City, for appellant.

Thomas J. O'Neill and Leonard F. Fish, both of New York City, for respondent.

McLAUGHLIN, J.

This action was brought to recover damages for the death of plaintiff's intestate alleged to have been caused by the negligence of the defendant. The appeal presents but one question, viz. whether, at the time of the accident, plaintiff's intestate was engaged in interstate commerce. If he were, then the judgment is right; if he were not, the action cannot be maintained under the provisions of the federal Employers' Liability Act (35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]), and the complaint should have been dismissed.

The facts are not in dispute. The intestate, an employee of defendant, was, at the time the accident which resulted in his death occurred, engaged in oiling an electric crane which was in its shop at Van Nest, N. Y. There was a long spout to the can, which contained the oil, and that in some way came in contact with a heavily charged electric wire, and he received the shock which caused his death. The crane was a large one, used, not only in connection with repairs on locomotives and cars engaged in interstate commerce, but also in handling heavy material, whether used in interstate commerce or not. The plaintiff had a verdict for a substantial amount, and the judgment entered thereon was affirmed by the Appellate Division; two of the justices dissenting. This appeal followed.

I am of the opinion the judgment must be reversed, on authority of Industrial Accident Commission of California v. Davis, 259 U. S. 182, 42 Sup. Ct. 489, 66 L. Ed. 888, and Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797. In the first case, one Burton was injured while making repairs to defendant's engine used in interstate commerce, and he sought compensation under a statute of the state of California. Compensation was awarded, but on review the award of the commission was reversed; the court holding that Burton at the time he was injured was engaged in interstate commerce. On appeal to the United States Supreme Court, the judgment was reversed; that court holding he was not engaged in interstate commerce, and relief must be obtained, if at all, under the state statute. The facts in that case are very much like the facts in the present case. In the second case, it was held that, to entitle one to recover under the Employers' Liability Act, not only must the carrier be engaged in...