Wise v. Lehigh Valley R. Co.

• Decision Date: 14 July 1930
• Docket Number: No. 330.,330.
• Citation: 43 F.2d 692
• Parties: WISE v. LEHIGH VALLEY R. CO.
• Court: U.S. Court of Appeals — Second Circuit

43 F.2d 692 (1930)

WISE v. LEHIGH VALLEY R. CO.

No. 330.

Circuit Court of Appeals, Second Circuit.

July 14, 1930.

Stephen A. Machcinski, of New York City (Edward J. McCrossin, of New York City, of counsel), for appellant.

Alexander & Green, of New York City (H. S. Ogden, of New York City, of counsel), for appellee.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The plaintiff, a brakeman in a switching crew in the Jersey City freightyard of the defendant railroad, was injured, through its alleged negligence, while operating a switch on track No. 5. The sole question raised by this appeal is whether he was at the time engaged in interstate commerce so as to come within the provisions of the Federal Employers' Liability Act (45 USCA §§ 51-59).

A number of cars loaded with cement, which had come from Copely, Pa., were on a track known as the cement track that ran along a bulkhead at Jersey City, where they were to be unloaded into barges. After some of them had been unloaded, and for the purpose of bringing the cars that were still loaded close up to the barges, an order was given to the train crew to switch the unloaded cars known as "empties" over to track 5. This was done by pulling the string of cars (loaded and unloaded), after they had been coupled, past the switch which led from the cement track to track 2, shunting the "empties" down track 2, and then replacing the loaded cars on the cement track. After cutting out the "empties" and backing the loaded cars down on the cement track, the engine coupled to the "empties" which had been left temporarily on track 2, started to pull them over a crossover track to track 5, where they were to be left. These "empties" included a car marked with chalk, "Return to Copely, Pennsylvania; empty cement," which contained empty cement bags.

To transfer the "empties" from track 2 to track 5, it was necessary for the engine to take them past a switch and then, after the switch was thrown, to back them down track 5. It was while the plaintiff was performing his duties in operating this switch that he received his injuries.

When the "empties" had been shunted to track 2 and the loaded cars backed down on the cement track, the conductor told the plaintiff to couple the engine to the "empties," put them on track 5, and then to come back and pull out some flour cars that were on Pier G, to shunt any of these flour cars that were "empties" on track 2, apparently so as to leave them to be added to the other "empties" on track 5, and then to take those that were loaded down to Washington avenue, whence they were to be ferried on car floats to New York.

On the foregoing proof a motion was made by the defendant to dismiss the complaint because the plaintiff had failed to show that at the time of the accident he was engaged in interstate commerce. The motion was granted by the trial judge.

The plaintiff contends that he was engaged in interstate commerce because:

(1) The empty cars were moved from track 2 in order to give the flour cars bound for New York a chance to get to the car floats. The object of the maneuver was therefore to facilitate interstate commerce.

(2) While the order to move the flour cars contemplated the prior shifting of the empty cars to track 5, the dominant purpose of the order was to move the interstate cars.

(3) The car containing empty cement bags and marked, "Return to Copely, Pennsylvania; empty cement," was being moved in interstate commerce and plaintiff was engaged in switching it at the time of the accident.

(4) The plaintiff was completing a movement that had been begun to break up an interstate train and to take interstate cars to appropriate places for unloading and delivering freight.

Each part of the maneuver, irrespective of whether it dealt with intrastate or interstate cars, was therefore to facilitate interstate commerce.

The first contention does not seem to be borne out by the testimony in the case. When the empties had been backed down on track 2 they were evidently east of the switch which led to Pier G where the flour cars destined for New York were to be placed on floats. The plaintiff was asked where the engine was at the time it was coupled to the string of loaded and empty cars that had been pulled out from the cement track, and he said, "It was about a car length or a car length and a half east of the switch" that "goes in between the cement track and Pier G." In such a position the "empties," bound ultimately for track 5, could not interfere with access to or egress from Pier G.

But even if the temporary position of the "empties" on track 2 was to the west of the switch point and so might for the time being interfere with some future movement of the flour cars, that fact would not affect the plaintiff's legal status. The empties only remained on track 2 while the loaded cement cars were being shunted back on the cement track. Certainly the mere presence of an intrastate car on an interstate track does not make it a part of interstate commerce.

In Illinois Central R. R. Co. v. Behrens, 233 U. S. 473, 34 S. Ct. 646, 647, 58 L. Ed. 1051, Ann. Cas. 1914C, 163, the decedent at the time of his death was engaged in moving several cars from one part of the city of New Orleans to another, all loaded with intrastate freight. Though in general he was indiscriminately employed in handling interstate and intrastate cars over tracks used for cars of both kinds, it was held that he was not engaged in interstate commerce at the time of the accident. This holding was in spite of the...