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

• Decision Date: 27 July 1923
• Citation: Wallace v. New York, N.H. & H. R. Co., 121 A. 878, 99 Conn. 404 (Conn. 1923)
• Parties: WALLACE v. NEW YORK, N.H. & H. R. CO.
• Court: Connecticut Supreme Court

121 A. 878

99 Conn. 404

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

Supreme Court of Errors of Connecticut.

July 27, 1923

Appeal from Superior Court, New Haven County; John W. Banks, Judge.

Action by Alice M. Wallace, administratrix, against the New York New Haven & Hartford Railroad Company. Judgment for defendant, and plaintiff appeals. No error.

Robert R. Rosan, of Bridgeport, for appellant.

James W. Carpenter, of New Haven, for appellee.

WHEELER, C.J.

The plaintiff seeks, under the remedy provided by the federal Employers' Liability Act (U. S. Comp. Stat. § § 8657-8665), to recover damages for the injury causing the death of her decedent, Wallace. An essential element of this cause of action is the proof that both the defendant and Wallace were engaged at the time of the injury to Wallace in interstate commerce. The court charged the jury upon the question of whether or not Wallace was engaged in interstate commerce at the time of his death as follows:

" If you find that the evidence supports this claim then you must find that Wallace at the time of his death was not engaged in interstate commerce, and the plaintiff cannot maintain this present action.

The claim of the plaintiff, on the other hand, is that this work was simply repair work, maintenance rather than constructive work, and that the crane was not withdrawn from service, but its use temporarily and necessarily suspended while this work was being done. If you should find that the evidence supports this claim then you would be justified in finding that Wallace was engaged in interstate commerce at the time of his death.

The difference between construction and maintenance work is sometimes difficult to draw and can be said to be one of degree rather than one of real difference. I am submitting to you in this case as a question of fact whether, under all of the circumstances disclosed by the evidence in this case, all of which I have not attempted to refer to, but which you will have in mind, whether upon the facts as to the character of his work at the time of his death Wallace was actually engaged in work so closely related to interstate commerce as to be practically part of it."

The trial court properly instructed the jury as to the test of the Supreme Court of the United States to determine whether an employee was at the time of his injury engaged in interstate commerce. That test, as stated in Chicago, B & Q. R. Co. v. Harrington, 241 U.S. 177, 36 Sup.Ct. 517 60 L.Ed. 941, and followed by us in Gruszewsky v. Director General of Railroads, 96 Conn. 121, 113 A. 161, was an affirmative answer to the question:

" Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?"

Its further instruction that if the work was new construction work, the operation was not then interstate commerce, but that if it was repair or maintenance work, where the crane was temporarily withdrawn from such service until the work was done, it was interstate commerce, was correct. The court left to the jury the issue of whether the work was new construction or repair or maintenance work, and instructed the jury that, as it found this issue, it should determine the ultimate issue whether the defendant and Wallace at the time of his injury were engaged in interstate commerce or not. The submission to the jury of this issue in this respect is one of the errors complained of and was, we think, erroneous.

Since the facts necessary to this determination were not in dispute, we think it was the duty of the court to have himself determined whether Wallace was engaged in new construction work, or in repair work, and to have then instructed the jury definitely, as matter of law, whether or not the defendant and Wallace were engaged in interstate commerce at the time of his injury. Notwithstanding the error of the trial court the plaintiff should not be accorded a new trial, since the verdict indicates that the jury must have reached the same conclusion upon this point that they would have reached had they been instructed correctly. We shall endeavor to make clear our conclusion.

The trial court was quite right in his observation that the line between construction and repair or maintenance work was sometimes difficult to draw, and in reality was one of degree rather than of real difference. Until the facts are before the trier in clear relief, he cannot draw this distinction with anything approaching certainty, and even then close cases will be especially hard to classify.

The facts, upon which the parties were not in dispute, were these: For a long time the defendant had two ash pits 150 feet in length, running practically north and south and lying between and below the rails of their respective tracks. These tracks were used by the defendant's locomotives for the purpose of cleaning their fires, dumping and depositing their ashes, and washing their ash pans. Of the locomotives dropping ashes into these two ash pits, most of them were used in interstate commerce, but some were used in intrastate commerce. In order to remove the ashes from these pits the defendant used a Gantry crane, a huge steel structure weighing many tons. When in operation, the Gantry crane moved upon rails called Gantry crane rails and parallel to the ash pits, and was propelled by electricity obtained from three wires which were suspended from iron brackets attached to wooden poles along one side of the ash pit. Because of the increase of its business, defendant determined to construct one additional ash pit to the east of the old ones, and eventually to construct another ash pit to the west of the old ones. In order to remove ashes from this new pit, it was necessary to widen the Gantry crane 30 feet, to relocate the Gantry rails, to the east and west respectively of the old ash pits, and to relocate the power poles and the water system for washing out the pits to the east of the enlarged facilities. On December 10, 1920, defendant extended the old Gantry rails to the south 20 or 30 feet and ran the Gantry crane thereon for the purpose of reconstructing it pursuant to the plan, and deenergized and removed the power wires from the poles. During December defendant moved the power poles some 20 feet to the east of the old location and the Gantry rails about 20 feet east and west respectively of their former position. From December 20 to January 3, 1921 the Berlin Construction Company was engaged in behalf of the defendant in enlarging the Gantry crane. They cut the overhead steel bridge work in two and separated the several sections by moving them to the east and west about 30 feet and between these sections they installed an entirely new steel overhead section. During December and January, defendant constructed the new pit track, being about 150 feet long by 4 feet wide and 5 deep, and having its walls made of concrete 2 feet thick and its bottom of granite paving blocks. This was completed January 11th or 12th, but it did not harden until about January 17th. During the first part of January the old power wires were reattached to the relocated old poles in a similar manner as before, and during January the water pipe system was relocated. On January 10th the Gantry crane was being tested by the defendant's electrical inspection department, when the relocated power wires were found to be too low, and Wallace was assigned to the task of raising the wires, and while so at work, on January 11th, suffered the injury from which he died. The Gantry crane was not used in ash pit operation from December 10 to January 17, 1921. The only new parts used in the work of reconstruction and relocation were two longer I-beams and some new brackets. The only new construction was that of the new ash pit. The old ash pits were continued in use by the defendant by means of an auxiliary hoist for loading, operated by steam and mounted on a specially constructed flat car. These facts, and the claims thereon, were not in controversy except as to the inference whether or not the defendant and Wallace were engaged in...