DAVIS, Circuit Judge.
Elmira Van Buskirk brought this action under the federal Employers’ Diability Act (Comp. St. §§ 8657-8665) to recover damages for the death of her husband, William Van Bus-kirk, occasioned by negligence of the Erie Railroad Company, his employer. The case has been tried twice. At the first .trial the plaintiff bad a verdict, but the judgment was reversed b3r this court on writ of error, upon a finding, as matter of law, that the decedent was not employed in interstate commerce at the time he was killed. 228 Fed. 489. On error to the Supreme Court the writ was dismissed for want of jurisdiction. 248 U. S. 549, 39 Sup. Ct. 183, 63 L. Ed. 416. At the "second trial, the court, viewing the facts as substantially the same as tiose of the first trial, and regarding itself bound by the decision of [623]*623this court as the law of the case, directed a verdict for the defendant. Thereupon the plaintiff sued out this writ of error.
The facts at both trials were in the main the same, and were practically undisputed. In order, however, to withdraw herself from under the law of the case as declared by this court on the first writ of error, the plaintiff maintains that there was one matter which distinguished the two trials, and which permitted them to be conducted on different principles of law. We shall therefore review the second trial, not under the law of the case as declared on the first writ of error, but on the theory under which it was conducted. For the main facts of the case on the. second trial we refer to the statement of facts on the first trial made in the opinion of this court reported at 228 Fed. 489. We shall repeat only enough of the facts to show the distinction between the two trials which the plaintiff urges, and- to disclose the grounds for our decision on this writ of error.
Van Buskirk was employed by the defendant as an engine hostler in its terminal yard at Jersey City. TIis work consisted in supervising the cleaning, coaling, watering, and sanding of engines after they had completed a day’s work and before" starting on another. The engines were cleaned at an ash pit, and were watered, sanded, and coaled^ at different places. Coaling was done by a lioist, called a Brown hoist. This hoist was equipped with a crane and a clam-shell bucket, and moved by its own power from place to place, where coal was to be transferred from coal cars to engine tenders. On the day in question" a switching engine, engaged in moving cars used indiscriminately in interstate and intrastate commerce, was brought to the ash pit and turned over to Van Buskirk for preparation for further work.
This case was tried before apparently on the theory that Van Buskirk was engaged with several other men in removing a heavy iron bucket from its position against a shanty about 150 feet from the ash pit, preparatory to shipping it or one of its parts to the Bergen yard, about a mile distant. Miles Maloney, Vvbo was on the west side of the bucket, testified at the first trial that lie saw Van Buskirk go on the other or east side of the bucket, and about that time he (Maloney) began to shove the. bucket:
“Q. Had you over seen liim have anything to do with the Brown hoist bucket? A. I\o; I didn't see him. I soon him under it.
*‘Q. When you saw Van Buskirk by the bucket, was that when the engine was being coaled? A. Yes, sir.
“Q. Had you ever seen him have anything to do with running the bucket or operating the machine? A. lie done it of his mm accord.. I see him going up there.
“Q. On the bucket? A. Ah; but on the machinery that ran it.
“Q. Was that while you wore coaling the engine? A. Yes.
“Q. That’s while the engineer was up there? A. Yes.”
From this and other testimony the court at the first trial concluded:
‘‘From these facts and proofs it is clear that the bucket from which Krueger was taking the yoke was not in actual or contemplated interstate commerce use, that Krueger, in attempting to remove such yoke, was not employed in interstate commerce, and that the Brown hoist; which he enlisted to help move the bucket, was not, while so employed, an instrumentality used in interstate commerce. Such being the case, it follows that Maloney and [624]*624Vtn Buskirk were not engaged in assisting Krueger in interstate commerce when the unfortunate accident occurred. It follows, therefore, that all the pet'sons and all the agencies connected with this accident were so distinctively noninterstate commerce in character that it was the duty of the court below on trial, and of this court now on appeal, to hold, under the undisputed facts, thit as a matter of law the decedent was not engaged in interstate commerce when he was killed and that therefore the federal Employers’ Liability Act, which imposes ‘damages to any person suffering injury while he is employed * « * gugjj commerce,’ does not apply in this case.”
There was no evidence in the second trial that Van Buskirk did anything in running the bucket, operating the machine, or that he went up or. the machinery that ran the bucket, as there was in the former trial. Oa the contrary, there was testimony that he did not have anything, directly or indirectly, to do with the Brown hoist, by virtue of his position as hostler.
'While the engine was being supplied with coal, sand, and water under his supervision, Van Buskirk could remain on it, or he could get off and go over to the shanty, and in going he would have to pass directly by the Brown hoist. He left his engine and went toward the shanty, but whether he was going to the shanty, or to some other place near by, the record does not disclose. The bucket was sitting beside the shanty. It had been attached to the bucket of the Brown hoist. When Van Buskirk arrived near the shanty, the Brown hoist was in the act of swinging'the bucket around, when it fell and killed him.
The engine was admittedly an instrumentality of interstate commerce, and when Van Buskirk took charge of it, to have it supplied w.th coal, sand, and water, he was engaged in such commerce. Pedersen v. Delaware, Lackawanna & Western Railroad Company, 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; Erie Railroad Co. v. Winfield, 244 U. S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662. The case turns upon whether or not, when he got down from his engine and went over toward the Brown hoist and shanty, he was still engaged in interstate commerce. If he was, as plaintiff contends, it was error to direct a verdict; if he was not, as defendant contends, the direction was without error.
The case of North Carolina Railroad Co. v. Zachary, 232 U. S. 248, 260, 34 Sup. Ct. 305, 309 (58 L. Ed. 591, Ann. Cas. 1914C, 159), is direptly in point. The work of inspecting, oiling, firing, and preparing the engine for its run with interstate freight, the court held, constituted employment in interstate commerce.
Free access — add to your briefcase to read the full text and ask questions with AI
DAVIS, Circuit Judge.
Elmira Van Buskirk brought this action under the federal Employers’ Diability Act (Comp. St. §§ 8657-8665) to recover damages for the death of her husband, William Van Bus-kirk, occasioned by negligence of the Erie Railroad Company, his employer. The case has been tried twice. At the first .trial the plaintiff bad a verdict, but the judgment was reversed b3r this court on writ of error, upon a finding, as matter of law, that the decedent was not employed in interstate commerce at the time he was killed. 228 Fed. 489. On error to the Supreme Court the writ was dismissed for want of jurisdiction. 248 U. S. 549, 39 Sup. Ct. 183, 63 L. Ed. 416. At the "second trial, the court, viewing the facts as substantially the same as tiose of the first trial, and regarding itself bound by the decision of [623]*623this court as the law of the case, directed a verdict for the defendant. Thereupon the plaintiff sued out this writ of error.
The facts at both trials were in the main the same, and were practically undisputed. In order, however, to withdraw herself from under the law of the case as declared by this court on the first writ of error, the plaintiff maintains that there was one matter which distinguished the two trials, and which permitted them to be conducted on different principles of law. We shall therefore review the second trial, not under the law of the case as declared on the first writ of error, but on the theory under which it was conducted. For the main facts of the case on the. second trial we refer to the statement of facts on the first trial made in the opinion of this court reported at 228 Fed. 489. We shall repeat only enough of the facts to show the distinction between the two trials which the plaintiff urges, and- to disclose the grounds for our decision on this writ of error.
Van Buskirk was employed by the defendant as an engine hostler in its terminal yard at Jersey City. TIis work consisted in supervising the cleaning, coaling, watering, and sanding of engines after they had completed a day’s work and before" starting on another. The engines were cleaned at an ash pit, and were watered, sanded, and coaled^ at different places. Coaling was done by a lioist, called a Brown hoist. This hoist was equipped with a crane and a clam-shell bucket, and moved by its own power from place to place, where coal was to be transferred from coal cars to engine tenders. On the day in question" a switching engine, engaged in moving cars used indiscriminately in interstate and intrastate commerce, was brought to the ash pit and turned over to Van Buskirk for preparation for further work.
This case was tried before apparently on the theory that Van Buskirk was engaged with several other men in removing a heavy iron bucket from its position against a shanty about 150 feet from the ash pit, preparatory to shipping it or one of its parts to the Bergen yard, about a mile distant. Miles Maloney, Vvbo was on the west side of the bucket, testified at the first trial that lie saw Van Buskirk go on the other or east side of the bucket, and about that time he (Maloney) began to shove the. bucket:
“Q. Had you over seen liim have anything to do with the Brown hoist bucket? A. I\o; I didn't see him. I soon him under it.
*‘Q. When you saw Van Buskirk by the bucket, was that when the engine was being coaled? A. Yes, sir.
“Q. Had you ever seen him have anything to do with running the bucket or operating the machine? A. lie done it of his mm accord.. I see him going up there.
“Q. On the bucket? A. Ah; but on the machinery that ran it.
“Q. Was that while you wore coaling the engine? A. Yes.
“Q. That’s while the engineer was up there? A. Yes.”
From this and other testimony the court at the first trial concluded:
‘‘From these facts and proofs it is clear that the bucket from which Krueger was taking the yoke was not in actual or contemplated interstate commerce use, that Krueger, in attempting to remove such yoke, was not employed in interstate commerce, and that the Brown hoist; which he enlisted to help move the bucket, was not, while so employed, an instrumentality used in interstate commerce. Such being the case, it follows that Maloney and [624]*624Vtn Buskirk were not engaged in assisting Krueger in interstate commerce when the unfortunate accident occurred. It follows, therefore, that all the pet'sons and all the agencies connected with this accident were so distinctively noninterstate commerce in character that it was the duty of the court below on trial, and of this court now on appeal, to hold, under the undisputed facts, thit as a matter of law the decedent was not engaged in interstate commerce when he was killed and that therefore the federal Employers’ Liability Act, which imposes ‘damages to any person suffering injury while he is employed * « * gugjj commerce,’ does not apply in this case.”
There was no evidence in the second trial that Van Buskirk did anything in running the bucket, operating the machine, or that he went up or. the machinery that ran the bucket, as there was in the former trial. Oa the contrary, there was testimony that he did not have anything, directly or indirectly, to do with the Brown hoist, by virtue of his position as hostler.
'While the engine was being supplied with coal, sand, and water under his supervision, Van Buskirk could remain on it, or he could get off and go over to the shanty, and in going he would have to pass directly by the Brown hoist. He left his engine and went toward the shanty, but whether he was going to the shanty, or to some other place near by, the record does not disclose. The bucket was sitting beside the shanty. It had been attached to the bucket of the Brown hoist. When Van Buskirk arrived near the shanty, the Brown hoist was in the act of swinging'the bucket around, when it fell and killed him.
The engine was admittedly an instrumentality of interstate commerce, and when Van Buskirk took charge of it, to have it supplied w.th coal, sand, and water, he was engaged in such commerce. Pedersen v. Delaware, Lackawanna & Western Railroad Company, 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; Erie Railroad Co. v. Winfield, 244 U. S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662. The case turns upon whether or not, when he got down from his engine and went over toward the Brown hoist and shanty, he was still engaged in interstate commerce. If he was, as plaintiff contends, it was error to direct a verdict; if he was not, as defendant contends, the direction was without error.
The case of North Carolina Railroad Co. v. Zachary, 232 U. S. 248, 260, 34 Sup. Ct. 305, 309 (58 L. Ed. 591, Ann. Cas. 1914C, 159), is direptly in point. The work of inspecting, oiling, firing, and preparing the engine for its run with interstate freight, the court held, constituted employment in interstate commerce. Tire plaintiff averred, and the et idence tended to support, that after preparing his engine for the run the deceased attempted to cross certain tracks that intervened between the engine and his boarding house, located a short distance away, and while crossing the tracks he was struck by another engine and killed. Defendant denied that at the time the deceased was killed he was engaged in interstate commerce. In discussing this question, Mr. Justice Pitney, speaking for the court, said:
“Again, it is said that, because deceased had left his engine and. was going to his boarding house, he was engaged upon a personal errand, and not upon the carrier’s business. Assuming (what is not clear) that the evidence fairly tended to indicate the boarding house as his destination, it nevertheless also appears that deceased was shortly to depart upon his run, having just pre[625]*625pared Ms engine for the purpose, and that he had not gone beyond the limits of the railroad yard when he was struck. There is nothing to indicate that this brief visit to the hoarding house was at all out of the ordinary, or was inconsistent with Ms duty to his employer. It seems to us clear that the man was still 'on duty,’ and employed in commerce, notwithstanding his temporary absence from the locomotive engine.”
That case is practically on all lours with this case. If going to the boarding house was not inconsistent with his duty to his employer, and he continued to be employed in interstate commerce, going from the engine toward the shanty, where he had a right to go while the engine ivas being prepared for further work, was also consistent with duty to liis employer, and did not terminate his employment in interstate commerce. In Shanks v. Delaware, Lackawanna & Western Railroad, 239 U. S. 556, 558, 36 Sup. Ct. 188, 189 (60 L. Ed. 436, L. R. A. 1916C, 794), the Supreme Court said:
“The test of employment in such commerce in the sense intended is, Was the employ'd 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?”
Applying this test to the Zachary Case, the court held that the requisite employment in interstate commerce existed—
“where a fireman, having prepared his engine for a trip in interstate commerce, and being about to start on his run, is walking across adjacent tracks on an errand consistent with 1ns duties.”
Going over toward the shanty was consistent with Van Bttskirk’s duty to his employer. While the engine was being prepared, he might stay on it, or “he could get oil and go to the shanty, or where he liked.”
Under proper instructions as to negligence, the case should have been submitted to the jury. The judgment of the District Court is reversed, and a new trial granted.