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

• Decision Date: 24 June 1915
• Citation: 87 N.J.L. 348,94 A. 595
• Parties: WILLEVER v. DELAWARE, L. & W. R. CO.
• Court: New Jersey Supreme Court

94 A. 595

87 N.J.L. 348

WILLEVER

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

Supreme Court of New Jersey.

June 24, 1915.

Appeal from Court of Common Pleas, Hunterdon County.

Action by Lillian Willever, administratrix, against the Delaware, Lackawanna & Western Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Argued November term, 1914, before GUMMERE, C. J., and GARRISON and MINTURN, JJ.

Frederic B. Scott, of New York City, for appellant. Elinor R. Gebhardt, of Jersey City, for respondent.

GUMMERE, C. J. This is an action brought by the administratrix of a deceased employé of the defendant company to recover compensation for his death, which occurred while engaged in the performance of the duties of his employment at the company's Port Morris yard, in Morris county, on the 11th of December, 1913. The appeal is taken by the defendant from a judgment entered on a verdict in favor of the plaintiff.

The plaintiff's right of action is based upon the federal Employers' Liability Act of 1908 (35 Stat. 65, c. 149), which provides that every common carrier by railroad, while engaged in commerce between any of the several states, shall be liable in damages to any person suffering injuries while he is employed by such carrier in such commerce, or, in case of the death of such employé, to his personal representative, for such injury or death, resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier.

The decedent was a section foreman of the defendant company, and he and the men under him were required to keep in order the tracks and switches in the Port Morris yard. This yard was used for the breaking up, temporary storage, and making up of trains which were devoted to interstate, as well as to intrastate, commerce. Decedent had held the position of foreman for five years preceding the date of his death. Shortly before the accident occurred he was at work with his gang repairing certain switches in the yard. He left these switches to go to some other point in the yard—where, or for what purpose, the evidence does not show. As he was crossing track No. 5 he was run down at the switch connecting that track with another by a freight train which was being backed down the track by a yard engine, and which was moving about as fast as a man walks. The testimony showed that no warning was given to the deceased by those in charge of the movement of this train, or by any other employé of the company, of its approach.

The appellant seeks to reverse the judgment under review upon two grounds: First, that the facts do not show that the decedent was employed in interstate commerce at the time of his death; and, second, that they will not support the conclusion that such death resulted to any extent from the negligence of any of the officers, agents, or employés of the appellant.

We do not think the first contention of the appellant can be sustained. In the case of Pedersen v. Del., Lack. & West. R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, the plaintiff was employed by the defendant company in the repair of a bridge near Hoboken, in this state, over which the tracks of the defendant company were laid. The bridge, and the tracks upon it, were being regularly used in both interstate and intrastate commerce. While engaged in this work the plaintiff was run down and injured by an intrastate passenger train. It was held that the accident occurred while the defendant company was engaged in commerce between the states, and while the plaintiff was employed by the defendant in such commerce. The present case cannot be distinguished from the cited one in its legal essence, so far as this phase of it is concerned.

The...