# Mostyn v. Delaware, L. & WR Co.

> Court of Appeals for the Second Circuit · May 9, 1947 · 160 F.2d 15

URL: https://www.frixlaw.com/law-library/cases/9644115

## Case

- **Full name:** MOSTYN v. DELAWARE, L. & W. R. CO. Et Al.
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** May 9, 1947
- **Citations:** 160 F.2d 15; 1947 U.S. App. LEXIS 3236
- **Precedential status:** Published
- **Opinion:** Dissent by Swan
- **Judges:** Swan, Hand, Clark
- **Cited by:** 71 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9644115

## How later opinions describe it (automated extraction)

- holding that “when a railroad provides shelter or food or both for its employees, and they are using the accommodations so provided to prepare themselves for their work, or to rest and recuperate, they must be regarded as in its ‘employ’ ”

## Opinion text

SWAN, Circuit Judge
(dissenting in part).
An interstate carrier’s liability under the Federal Employers’ Liability Act is to “any person suffering injury while he is employed by such carrier in such commerce.” 45 U.S.C.A. § 51 . The first question is whether Mostyn was so employed while asleep on railroad property during the night preceding a Saturday when he may have intended to go to work. Before the amendment of 1939, the authorities clearly indicate to my mind a negative answer. The amendment was intended to do away with the “moment of injury” rule so that an employee whose work has to do with both interstate and intrastate commerce shall not be deprived of the benefits of the Act because his Work at the moment of injury was intrastate. It provides that an employee “any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce * * * shall * * * be considered as entitled to the benefits of this chapter.” During the night hours normally devoted to sleep the employee owes no duties to his employer; nor do the hours spent in sleep “directly or- closely and substantially, affect such commerce,” even though he may work better after a night’s rest. Hence I do not think the 1939 amendment should affect our decision. Mostyn was privileged to sleep in the hunk car (and a certain sum was deducted from his wages if he did so) but he was not required to sleep there; he could, if he wished, have rented a room in the nearby village as one of the track crew did. Therefore the question whether he was employed in interstate commerce during the night is no different than it would be had he been sleeping at a hoarding house in the village or at his own home and suffered injury through the negligence of the railroad* as, for example, by reason of the destruction of the house by fire caused by a defective spark arrester in a railroad engine. In my opinion he was not injured while he was employed in interstate commerce. He was, however, an invitee on the railroad premises at night. I think the judgment should be reversed and the cause remanded for a new trial in order that the jury may pass upon his rights as such invitee. I concur in dismissal of the cross complaint.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9644115. Public record. Not legal advice.