Shanks v. Delaware, Lackawanna & Western Railroad

163 A.D. 565, 148 N.Y.S. 1034, 1914 N.Y. App. Div. LEXIS 7030

Opinions

Putnam, J.:

Defendant has been held liable under the Federal Employers’ Liability Act of April 22, 1908 (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143), for an injury to plaintiff at Kingsland, N. J., on January 14, 1912, and after the Workmen’s Compensation Law of New Jersey was in force. (See Laws of 1911, chap. 95, as amd. by Laws of 1911, chap. 368.)

* Plaintiff was a machinist in the defendant’s railroad repair shops. He was doing overtime work on Sunday, to remove a shaft-hanger bolted to a steel girder or truss, to be reset on same girder about two feet from its original position. This truss was one of a pair of longitudinal girders, a little over fifty feet apart, upon which were the tracks which carried an overhead traveling crane. The shaft-hanger conveyed power to a shaping machine on which brasses, keys and cotters were finished for engine connecting rods. Apparently this machine was being removed as a matter of shop arrangement, perhaps to make room for other tools near it. This was being done on Sunday, doubtless so as not to interrupt the full week day activities. After removing the bolts and detaching the shaft-hanger, plaintiff was about to drill new holes. He tried to reach over and down on the other side of the girder to the points where these holes came out. While he was thus reaching over the track of the crane, its wheels ran over his hands, causing the injuries for which this action is brought.

Plaintiff had previously worked repairing parts of locomotives, but at this time, and on the day before, he had been assigned to the wheelwright work of attending to the shop 'machines, and of keeping them in repair. These shops at Kingsland were defendant’s general repair shops in Hew Jersey. Often entire locomotives came there; sometimes only parts were sent there to be repaired and returned to the roundhouses. Eepairs at these shops were on any locomotives indiscriminately, regardless of whether they ran in interstate or intrastate traffic.

The remedy by the Federal statute is “to any person suffering injury while he is employed by such carrier in such commerce.” (35 U. S. Stat. at Large, 65, § 1.) These strict limitations are so as not to trench on the rights of the States. Congress can legislate concerning the mutual rights and liabilities of master and servant, when both are actually engaged in interstate commerce. (Employers’ Liability Cases, 207 U. S. 463.)

The employee must be himself engaged in commerce, or his work must be a part of interstate commerce under Federal protection, but this is not his general line of work, but “the particular service in which the employe is engaged.” The test declared by the Supreme Court of the United States is the “nature of the work being done at the time of the injury,” not what the employee expects to do after the completion of his task. (Illinois Cent. R. R. v. Behrens, 233 U. S. 473, 478.)

This plaintiff’s recovery would require us to hold that the general repair shop of á railroad system, which has extensive local train service as well as through traffic ■—■ that the shop itself is an instrumentality of interstate commerce in the sense that a switch, or a bridge, has beeh so j udicially declared. How carefully the courts discriminate is seen as to the crew of a switch engine, which sometimes moves local cars, and again cars carrying freight for points beyond the State, the men working indiscriminately on both kinds of traffic. But these employees are not thereby held to be engaged in interstate commerce; on the contrary, such switching train work, though in constant change, is to be distinguished according to its character at the time of the employee’s injury, and the liabilities by the Federal act are applied only to the handling and movement of cars that are then bound to or from across State lines. (Illinois Cent. R. R. v. Behrens, supra.)

A test to decide if an injury to a railroad employee is within the protection of the act is its effect on the course and current of interstate commerce. Was the employee’s relation to traffic so close and direct that his injury tended to stop or delay the movement of a train engaged in interstate commerce ? (Lamphere v. Oregon R. & Nav. Co., 196 Fed. Rep. 336.) It is on this principle that not only the train crew, but an employee repairing its track or switch, is under the protection of the act. And as a bridge, if not kept in suitable condition, may by its defects interrupt commerce, the duty to repair such an instrumentality carries with it the protection of employees so engaged. (Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146.) And one working to repair a refrigerator car (Northern Pac. Ry. Co. v. Maerkl, 198 Fed. Rep. 1), or at a shop, repairing a locomotive that has been in interstate commerce, is held within the statute. (Law v. Illinois Cent. R. Co., 208 Fed. Rep. 869.) But the work of millwrights installing machine tools in a general repair shop is not interstate commerce, even if such tools are capable of use in repair of engines or cars. Many incidents of railroading cannot in any real or substantial sense be interstate commerce. For greater facility to expedite repairs a carrier may operate its own foundry and forges, with warehouses to store axles and carwheels. But the labor in setting up and maintaining such a plant is not thereby made commerce. If a car comes to such a shop those who work on the car may be engaged upon an instrumentality of transportation. The shop machines, however, like the supplies within the paint shop, have not reached the connection with the movement of trains required to bring those so engaged under this act. To hold otherwise would extend the purview of the statute beyond its construction by the Federal courts.

I advise that the judgment and orders be reversed, with a final judgment dismissing the complaint, with costs, but without prejudice to plaintiff’s remedy under the Workmen’s Compensation Act of the State of New Jersey.

Jenks, P. J., Carr and Stapleton, JJ., concurred; Burr, J., read for affirmance.

Since amd. by Laws of 1913, chaps. 145, 174, and Laws of 1914, chap. 244.— [Rep.