Petition for Writ of Certiorari — New York, NH & HR Co. v. Bezue

fe ee __JUL 48 193]

——

ae | CHARLES ELMORE cf

cs eas ae

Supreme Court al the United States —

_ October Term, 1931

"No. 263 —

THE NEW YORK, NEW HAVEN AND nawnronip

RAILROAD COMPANY,

Petitioner, ‘9

VS.

CLARENCE BEZUE. .

*

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME.

COURT OF THE STATE OF NEW YORK, NINTH DIS.

TRICT, AND. BRIEF IN SUPPORT THEREOF.

hus M. GrBBons,

| Epwarp R, Brumiey, —

Femina Jams, JB.,

Counsel’ for Petitioner. -

ae TREE OTL EOE

- E. W. TRAVER, Law Printer, 154 Nassau St., N. Y. (Tel, BEekman 8-2726) .

s

SUBJECT INDEX

ee

- Petition for a writ of certiorari

A. Summary statement of matter involved...

B. ‘Reasons relied on for the allowance of. the writ

Prayer for writ .-..

f om Brief i in support. of petition for writ of certiorari. . .10-19 :

I. The opinions of the courts below

IL. . Tarisdiction

~ IV: | Measthidiac of errors

V. Argument .;.......... lxes dad caneninasiel me fi

oe Summary of argument

Point A. The evidence did not justify the rul- .

ing of law made that the plaintiff was engaged .

in interstate commerce within t e meaning of

the Federal Employers’ Liabi

Point, B. At the most plaintiff ‘estate a fact

_ question that ‘should nave been submitted: to

? Conclusion

Table of Cases Cid peas

Beta es Bi PAGR

— theron. Bievated Ry. Co. v. Teele, 248. Fed. 424 (©. C.

aN A, Ist) . csaws FO Tee oe rn Pe en rem 9

Boyle v. Pennsylvania R. Co., 998 Fed. 266 (C. ©. A |

5 WE SAREE es deo dns enn ena’ Heswhaeeg nies: 5

Chicago, K. ° 8. By. Co. v. ‘Kindlesparker, sig U.S...

DF 55k ccsBcsleu se sennpcuksaianazuniess eva cal t

~ Chi. & Rock Island R. R.V. ‘Pidieins, 239 TT. 'S:52...... 122

__ Conklin v..N. Y.C..B. RB. Co., 238 N. Y. 570; certiorari |

denied 266 U. S. 607........0.....3. cuca seences 16

Erie R. R. Co. v. Collins, 253 U. S: 77 acieces vate 7, 17,18

Erie R. R. Co. v. Szary, 253 U.S. 86.. ve eeete eee LT, 18 |

Erie Re R. Co..v. Winfield, 244 U. S.170...... sere 18

_ Hi Cent: R, RB. v. Belirens, 233 U. §. 473.......... 7,15)11

Tl; Cent. R. R. v. Peery, 242 U. Te DE base ns evenness _ 15. ae

‘Industrial Commission v. Davis, 259 U. 'S. 182. Coe akan 3 17

. Leslie v. Long Island Co., 248 N. Y. ee eee « 1.

—- & Nashville R. R. Co. v. Parker, 242 U.S.

PP. asskcians piece boeke te ebns eens eke renusas 15, 19

Minneapolis & St. Louis R. RCo. v. Winters, 242 U. 8.

Oe <eennbubexeabadtas Vixkaskasaeeals beeaseeas ts 6

Marini v. Erie R. R. Co., 253 N. ¥. 589......0.. 16

N.Y, Central RR. v. Carr, 238 U. 8. 260......6.622+ 15

New York Cent. R. C8>v..Marcone, 281 U. S. 345... .17,18

, ” Nor. Car. R. R. Co. v. Zachary, 222 U. 8. 248......9, 18, 19

* Onley v. Lehigh VR. Co., 36 F. (24) 705 (C. C. A. 2d)

. certiorari denied 281 U. * eee Pee erp ree 2

° a * x

ili

| PAGE -

ae Pederson ¥. Del., Lack. & West. R. R., 229 U.. s. 146... W

Penna. Co.’ v. Donat, 239 U. | IE SOEs es

Phila: & Read. Ry. Co. v. DiDonato, 256 U. S. 327... 66. 8

| Richmond & Danville Railroad v. Powers, 149 U.S. 43 19.

” St. L. & Iron Mtn. Ry. v. McWhirter, 229 U.S. 26%....° 12

"St. L. & San Franciseo Ry. v. Seale, 239 U.S. 156..... ds

Seaboard Air Line v. Horton, 233 U.S. 492....... - - Wo

Shanks v. Del., Lack. & West. R. R,, 239 U.S. 556. ..7, 15,17

Southern Railway v. Lloyd, 239 U.S. 496... eeteeveuee 19

Southern Railway. Go. v. Puckett, 244: U. S. 571. wee

Sullivan v.'N. Y., N. H. & H: R. R. Co., ‘105 a

certiorari denied Se We Oe cots 6c kc ac a

Wisconsin & Arkansas Lumber Co: v. Day, 35 F. (24)

563 (C.C.A. 8th)... .-..eseeeeee, EE 19

a ee

+ “Table of Statutes Cited

Act of Cong.'April 5, 1910, ©. 143, $1, 36 Stat. 291...1, 9 et seq.

Act of ‘Cong. April 22, 1908, ¢. 149, §1, 35 Stat. 65.1.1, 9 et seq.

"Judicial Code, §237, Act of Congress, September 6,

1916, ce. 448, §2, 39 Stat. 726; Act of Congreéss, Feb-

ary 13, 1925, c. 229, ‘1, 43 Stat. _ eee eeechee oe

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ead Court ‘ the United States . |

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October Term, 1931

THe New York, New Haven anv Harrt-

"FORD Rar-Roap Company,

: Petitioner, ;

No.

vs.

CLARENCE BEZUE.

PETITION FOR ‘WRIT OF CERTIORARI

Mey it Please the Court:

. The petition of The New York, New — and Hart-

ford Railroad Company respectfully shows to this Hon-

orable Court: : . .

A. Summary Statement of the Matter Involved —

This is an action fos-personal injuries bronght under

the Federal Employers’ Liability Act (Act of Cong. April

22, 1908, c. 149; $1, 35 Stat. 65, and Act of April 5, 1910,

* ¢. 143,'§1, 36 Stat. 291). The issues came on for

"trial before a Judge and jury in the Supreme Court, Put-

nam County, New York, on September 4th, October 2nd,

8rd, 9th and 10th, 1930, and resulted in a verdict in favor

mt

a

of the plaintiff and against the defendant in the sum of

$60,000 (R. 1, 453). The Appellate Division of the Sv.

preme Court, Second Department, Feversed the judgment

and order upon the law and the facts and granted a new

trial, unless plaintiff stipulated to reduce the verdict to the

sum of $50,000, otherwise the judgment as modified and.

the order were unanimously affirmed, 232 N. Y. App. Div. «|

840. Plaintiff so stipulated (R. 1, 503-507). Thereafter -'

- defendant appealed as of right to the Court of Appeals

from the judgment in favor of the plaintiff, which judg-

ment reduced and modified the verdict,.and also from the

order of the Appellate Division modifying and reducing

the judgment (R. 501, 502). The Court of Appeals has ©

handed down a decision affirming the said judgment (257 |

N. Y. 480; R. 520, 521), and made a judgment and order of

affirmance dated June 2nd, 1931 (R. 520, 521).

- Plaintiff had been in the employ of the New Haven

Railroad Company for nearly a year prior to the accident °

on September 2nd, 1929; for the first eight or niné months.

as ah, engine-wiper, working inside and outside of the

roundhouse at Maybrook, New York (R. 144, 145). For

three or four months prior to the accident he was classified

as a truck operator, under the labor foreman, in the un-

skilled labor gang (R. 175). Defendant’s-Exhibit ‘A, oppo-

site page 470, shows the kind of truck he operated (R.

176). It was used for various purposes 1 in the vicinity of

- "the engine-house, and the crane was used for = ae

279-281). ; oe

wie of the unskilled labor miei wheels, - things

in position for mechanics, dumped coal, operated coal pock-

'- ets; ran turntables, cleaned windows. (R. 335). Plaintiff

“ ‘ih " me

90 IT ICY MEAN IRON AIAN BIL ORNS NE BAMA A SEER LR I BOGE PER NEE MRE

3

himself was principally engaged in keeping locomotives in

good repair. Occasionally he carried driving rods on the |

electric truck, removed and replaced engine brackets, re-

moved pumps, assisted in removing and replacing cylinder

‘ heads on engines, assisted #n moving side and main. rods

, of engines to and from the machine shop, handled heavy .

‘materials for engines, took springs to them, assisted in -

. removing and replacing eylifider pistons, and'removing and *

replacing rails at drop pits (R. 190-194). ‘‘I never knew

- what I was going to do from one’ moment to the next”’

. (BR. 194). Sometimes his work was confined to locomotives

in for only a few hours, at other times to locomotives in

for two or three days (R. 145, 146, 151). He almost always

worked with the electric crane, used for both light and —

heavy work (R. 145-151, 190-198, 233, 234, 175-179, 157, 277-

281). He helped around the engines with a truck, lifted

castings, pulled down grease boxes, put grease into the

engines. He oiled springs, fixed draw-bars, changed pumps,

.. often engaged in small jobs (R.“146, 151). At times lie

would take off driving wheels and do otlier heavy work

(R. 277-281; for further details of his general work see

147-151, 190-194, 233, 234). |

“At Maybrook the railroad had a roundhouse with three

sub- divisions, twenty-seven tracks, and a turntable i in front

* (Defeudant’s Exhibit C, opposite page 472, R. 177-179; 331,

266).' The roundhouse hed pits in each subdivision. In

addition ty the roundhouse and turntable was the so-called _

Whiting Hoist Building with lathes, a hoist, four tracks,

tool room and electrical shop (Defendant’s Exhibit D, op-

_ posite page 474, R. 327-329). There were also a carpenter

shop building (Defendant’s Exhibit J, opposite page 482, .

R. 328- oe : and a machine ie room terial s Ex-

4 So

“hibit L; opposite page 488, R. 267, 424). It is obvious that

this Maybrook Terminal was not merely a place of lay over

for engines, but also @ place of repair. Exclusive of in, -

spectors-there were 193 men at the roundhouse (R. 424),

In passing it may be noted that some of the side rods of

engine 3221, with which we are particularly concerned, |

_ were taken to the above machine shop room (R. 425). |

When in use most of the engines coming in and going ° -

out of the Maybrook Terminal were engaged in interstate

commerce (R. 145, 148, 149, 267, 280, 299, 335, 336, 313, 314), -

Some of the engines were engaged in passenger service in

the State of New York (R. 280). While most of the en-

gines had a desfgnated run, engine 3221 did not. From

August 10th to 23rd, 1929, it had different departure times

between Maybrook and New Haven, sometimes ran between

Maybrook and East Hartford; and we find the same indef.-

“niteness for the period: September 4th to" September 18th,. .

1929 (R. 148, 149, Plaintiff’s Exhibit 15-B, opposite page

466; R. 273, 294, Plaintiff’s Exhibit 15-A, opposite page

' 464). During both these periods it was engaged in inter- ©

state commerce; and it had been so engaged, when in use,

from September 3rd, 1927, to August 10th, 1929 (R. 289,

270, Plaintiff’s Exhibit 15-B, opposite page 466)... =

a -

: All engines operating in New York undergo a boiler

4 wash every thirty days, and also a thirty-day inspection

(R. 270). Certain repairs are attended to-at this time. Ac

The evidence would. seem to divide répairs into three

classes—minor repairs that could be made between runs,.

repairs taking a longer time ,that could not be made be-

tween runs and were attended to at the boiler wash and

inspection period, -and classified repairs made after the

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. engine had gone approximately 35,000 miles, or about every

eighteen months. These last repairs were made at Read-

_ ville, Mass. (R. 337-340, 245, 288). :

, Engine 3221 arrived at Maybrook on August 23rd, 1929,

- and left on September 4th—a period of twelve days. It

underwent a thirty-day boiler wash and a thirty-day, in-

spection at that time (R. 270). Yhe-accident occurred on. .

' September 2nd (R. 271, 272). During this twelve-day pe- °

riod the main driving wheels of this engine were removed,

and the journal turned, the latter task involving eight to

ten hours of lahor (R. 181; 341). Several parts of the ~ ‘|

engine were taken to the machine shop, the jacket over the

fire box taken off, and the fire dumped (R. 282-284). With-

out these wheels the engine could not move on its own

power (R. 336). Defendant’s Exhibit I, consisting of three

pages, opposite page 480, shows the work done (R. 285).

Item 8 on page 3 of this Exhibit would take two men a

period of five days (R. 322, 323). Items 26 to 35 on page 2

of Exhibit I would take two men 32 hours (R. 324-326).

Skilled labor was performed on all days of the period ex-

cept August 24th and 25th (R. 334, 335). - |

_ _ On the day in question plaintiff went on duty at 8

o’clock in the morning, and the accident occurred at 11 or

- 11:30. During the early, morning he had operated the

_ truck but that is all we know (R. 177). The tasks for the ©

rest of the day had not yet been assigned (R. 194). Two

hours or more prior to the accident he was asked to assist

in moving the main pair of ‘driving wheels of engine 3221

-(R. 182, 183). He assisted in removing the block from the __

lathe, and in rolling the wheels from the Whiting Hoist

Building to a switch, a distance of 619 feet, and from the

r ,

6

switch to the place of the accident, a distance of 1062 feet

(R. 331).! ra

This pair of driving. wheels bad been taken from engine

_ 3221 in the roundhouse, to the back shop or Whiting Hoist -

Building, and there repaired (R. 152, 153, 186, 283). They

were the main driving wheels of the engine, probably.

- weighing ten or twelve tons, admittedly very heavy (R. 180,

- back shop, and plaintiff removed a block out of the lathe, ~|

181). Plaintiff and other men brought the truck to the

others removing the wheels from the lathe with the aid of a

crane (R. 183, 184), These men, including plaintiff, then

rolled the wheels by hand out of-the shop, up’ the track to

- the switch, back on the main line leading to the turntable,

‘ and placed them on the turntable (R..152). The turntable

lined the wheels up with a track next to the track they were |

to be placed upon (R. 154). Plaintiff and the other: ‘men

then pushed the Wheels off the turntable. They were then

-blocked (R. 154). The table was lined up: with the next

track in order.:to pull out an engine so as to get at 3221

(R. 154). While the. men waited for the signal to move the

. wheels forward out on the turntable again the wheels start-

’ ed rolling backward, resulting in the accident to the plain--

tiff (R. 154-156). If the accident had not happened they.

would have been'put on the turntable, the turntable lined |

up with the track, and the wheels moved off (R. 157).

This was a large freight engine of the Santa Fe type.

The main driving wheels are indicated by an X on Defen: :

- dant’s Exhibit P,- opposite page 496 (R. 269,-274, 293, 348, 3

B49).

v. Davis, 259 U. S. 1 12. |

8

B. Reasons Relied On for the Allowance of the Writ

Petitioner. respectfully contends that the writ of cer-

-tiorari should be granted to review and reverse the judg-°

_ ment of the Court of Appeals of the State for the following

_ reasons: - | 7

(1) The decisions of the Supreme Court of the a

New York, the Appellate Division of the Supreme Cou

Second Department, and of the Court of Appeals holding _

that plaintiff was engaged in interstate commerce as a mat-

ter of law are not in accord with the applicable decisions of

this Court, including Ill. Cent. -R. R. v. Behrens, 233 U. S.

473; Ill. Cent. R. R. v. Peery, 242 U.S. 292; Shanks v. Del.,

Lack. & West. R. R., 239 U.S. 556; + Micunctipotie tM. Kansie

| 2. R. Co. v. Winters, 242 U.S. 353; Chicago, K. ys S Ry.

Co. v. Kindlesparkey, 246 U. S. 657; Industrial aan

*

(2) If it can be said that the decisions in this case are o

not contrary to applicable decisions of this Court, it must .

then be said they decide a federal question of substance and

importance, not héretofore determined by this Court, and

it is in the public interest to have that question decided by

‘this Court. =~

(3) The intimation in Erie R. R. Co. v. ‘Gollins, 253

U.S. 77, as to abrupt transition, with no interval between

duties, shduld not govern this ease. It has no application p.

to a fact situation involving a task of at least two hours’

v detailed, ‘peculiar labor.

at (4) Further ‘accurate delimitation” is necessary, and

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:': case ‘‘has importance yond the interest bof the parties

t,

’? and it will ‘‘make a test by which further cases may

be assigned to intrastate or interstate commerce and matk

to either.’’ Phila. @ Read. Ry: Co. v. DiDonato, 256. §,

327. :

(5) The Court of Appeals should have’ determined

whether the engine had been withdrawn from service, such ;- |

determination being a necessary part/of the question. By

’ refusing to consider the engine work, the status of the en-

gine, the place of repairs, the extent of the repairs, the

| particular work at the particular time, the Court of Appeals

ghas done one of two things: (1) Madge a decision contrary

_ to the applicable decisions of. this Court; or (2) Laid down |

a new test not hitherto approved aS a test by this Court.

“the power and policies that may be necessary or convenient ie

r J

6) If this bial stands as authority the rights:and _

obligations of many emplayees and many railroads will

lack uniformity of administration. dh

(7) As the engine had not been. designated to any par-

ticular commerce, and as it had been definitely withdrawn —

from any commerce, work in connection with it was not in

interstate commerce.

oa .

(8) The general plant service of plaintiff should not

give color.to his particular work at the particular time.

(9) Plaintiff’s work had one immediate objective at the

time of the accident, but the Court of Appeals treated this

objective as immaterial, and decided the question on a pre-

vious objective of general plant service, non- existent at the

time of the accident. In so doing the Court of Appeals has

?

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Serene 5 ey onal LATION CI INET STIS NIP gM NS IY BAIN TT

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ty 9

gone beyond the principles laid down ie this Court as de-

termining the question of spaoaier a commercé.

( 10) Your petitioner ‘Ceaipresaly claimed immunity by

reason of the act of Congress, and the highest Court of the

‘. * State either decided or assumed that the records sufficiently

presented a question of Federal right and decided against

the party asserting that right.’? Nor. Car. R. R. Co. v.

: Lachary, 232 U.S. 248, 257.

11) > -Thére was evidence tliat at least was sufficient to

go to the jury as to whether the case came within the Fed-

eral Employers’ Liability Act.

—,

WHEREFORE, your petitioner respe fully prays that. a

writ of certiorari be issued: out of and uhder the seal of this

Honorable Court, directed to the Suprem8 C@art : ‘of the

> of New York for the Ninth District, commanding that

ourt to certify and to send to this Court for its review

and determination, on a day certain ‘to be therein named, a

- full and completé transcript of the record and all proceed-

ings in the case numbered and aa on its docket, No.

3-328, Clarence Bezue, plaintiff-res ondent, against The.

New York, New Haven and Hartford Railroad Company,

defendant-appellant, nd that the said order and judgment :

\of the Court of Appeals may be reversed by this Honorable

Court, and that your petitioner may have such other and

further relief in the premises as to this Honorable Court

may seem meet and just; and your petitioner will ever pray.

— N EW YORK, NEW HAVEN AND HARTFORD

RAILROAD COMPAN ps

By Joun M. Gispons,

Counsel for Petitioner.

. . .

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ean EEL TOE GH OTIS N ALLEN BER bah hl cid ”

. RE PT re eee

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_ SUPREME ye oe THE UNITED STATES |

| en TERM, 1931 ee

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“THE: New York, New Haven AND Harr.

ForD Rariroap Company,’

. the! Petitioner, \ ,

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>.

- CLARENCE BEZUE.

| BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

, |

. The Opinions of the Courts Below ”

_.. The opinion. in the Cart of Appeals is — 4

Bezue ¥. The New York, New Haven and Hartford Railroad,

Coneet. 25% N. Y. 480, decided June 2, 1931 (R. 511-519)..’

‘The opinion in the Appellate Divistea, Second Deneit:

‘ment, is reported in 232 N. Y. App. Div. 840 (R. 508).

The Trial Court wrote no opinion (R. 500).

1

(1) The jurisdiction ‘of this Court is invoked under the

. Federal, Employers’ Liability Act (Act of Cong. April 22,

s

11.

o | ey .

. 1908, c. 149, §1, 35 Stat. 65, and Act of Aprik5, 1910, c. 143, -

_* G1, 36 Stat. 291): | Ss ucooulllth Clee See nam

The. jurisdiction is also invoked under Judicial Code,

§237, as amended by Act of Congress, September 6, 1916,

c. 448, $2, 39 Stat. 726, and Act of February 13, 1925, £

229,41, 43 Stat-937. : |

_ (2) The date of the judgment to be reviewed is June

the 2nd, 1931 (R.520,521),4 = |

\. (3) .This case was tried and- decided by the state courts

under the Federal Employers’ Liability Act, the complaint

- alleging interstate commerce, and .the answer denying it —

(R. 12-16). The judgment was rendered for the plaintiff

in the sum of $60,222.50 (R. 23, 24). Petitioner appealed

from the judgment to the Appellate ‘Division of -the Su-

preme Court, Second Judicial Department (R. 2,3). That.

Court reversed the judgment and order, and directed ,a

"new trial unless plaintiff stipulated to reduce the verdict

_ fo the sum of $50,000, in which event the judgment ag so

modified, and the order, were unanimously affirmed (R.

503, 504): Plaintiff consented to such reduction (B. 507),

and thereupon plaintiff appcaled to the Court of Appeals

(R. 501, 502), which Court affirmed the judgment (B. 520,

521), two of the Judges dissenting. ‘Thereupon thejudg- .

ment and ordet of the Court of Appeals :(dated June’ 2,

193t) was made the judgment and order of the Supreme |

Court on the 9th day of J une, 1931 (R. 522, 523), and judg-

- Ment was entered on the remittitur of. the Court of Ap-

peals on the 10th day of June, 1931 (R. 524, 525)...

_ 44) The cases believed to sustain the jurisdiction of

this Courtare: | eee:

. ” +12

St. L. & Iron, Mtn. ‘Ry: v. McWhirter, 229 V, S.

265, 275-277; |

| as Seaboard Air Line v. Horton, 223 U.S. 492, an, ‘a

Be ee 499;

Ohi. & Rock Island R. R. v. Devine, 939 U. 8 52

oe!

| anapnent of the Case

A full statement of the case has. been given under head.

re ing ‘‘A’’ in the petition: and i in the interest of brevity the

7 statement is ied iti at this point.

> ow |

Specification of Errors ..

: (1). The trial court erred: in: eitiieg petitioner’ s mo-

tion, | made at the end of plaintiff’s case, to dismiss the com-

plaint on the ground that he had failed to prave interstate

». commerce, had failed to prove that he came under the

Federal Employers’ Liability Act at the time and place of

- the accident, that the evidence showed he was not engaged 7

_ in such commerce at such- time and place, that the engine

5 had been withdrawn, from service, that he was engaged in.

- repair work with that. engine at that time, that he was not

engaged i in commerce or movement i in any way (R. 314-316).

(2) The trial court oniek’ in prom and holding that

-the engine was an {nstrumentality of interstate commerce,, -

. that it was not withdrawn from the service, but that round-

ew

13

. house repairs were heihg me and: that during that time

it continued in the service and was an instrumentality of

interstate commeree, and the plaintiff at the time was en-

gaged in interstate commerce work upon an inStrumentality a

of interstate commerce that had not been deinen with-

drawn from the service (R. 315, 316). | _e

(8) The trial court erred in denying: petitioner’s mo-

' tion for the direction-of a verdict in its favor, made ‘at the

end of the entire, case, on the ground of failure of proof

* that plaintiff was engaged in interstate commerce (R. 431, e

432). )

-

(4) The trial court erred in denying defendant’s mo-/ _

tion to go to: the jury on the question of interstate com-

merce (R. 431).

(5) The trial court erred in its vainia to ‘the jury

wherein it said that the plaintiff and defendant, as a matter

of law, were engaged in interstate commerce, and plaintiff

was entitled to the benefit of the Federal ee Lia-

bility Act - 434).

+

(6) The trinl court erred in denying defendant’s mo-

tion to. set, aside the verdict. and for a new trial upon the

exceptions in the judge’s minutes, that the verdict was con-—

= trary to the evidence, contrary tothe law, and on the fur- :

ther ground of-the exceptions taken to the ruling on the

‘question of interstate commerce (R. —_ 454).

-~

.(7) The Court of Appeals erred in’ “holding that plain-

: tiff was engaged i in interstate commerce.

.

Vv

Argument |

Summary of the Argument

Point A. ‘Thé evidence did not justify the ruling of lay

‘made that the plaintiff was engaged in interstate commerce

* within the meaning of the Federal Employers’ Liability

Act: 8 7 a:

Point B: At the. most plaintiff presented a fact ques.

tion that should have been submitted to the jury.

POINT A

The evidence did not justify the ruling of law made that the

plaintiff was engaged in interstate .comnierce within the meaning

of the Federal Employers’ Liability Act. ore

The prevailing opinion of the Court of Appeals proceeds

on the theory that the roundhouse was an essential part

of the railroad’s system, and that the respondent was en-

gaged in a’plant service (R, 513). The Court reaches the:

conclusion that this was employment in the maintenance —

of the roundhouse which was a nécessary part of the plant,

essential in the railroad business of carrying on interstate

commerce (R.,.516). The dissenting opinion of Judge

O’Brien says that>his energies were directed to an object

which was not an instrument of commerce, and that the

character of his employment on other occasions was imma-

terial (R., 518, 519). The majority opinion finds it unnec-

essary to determine whether at the time of the accident the

locomotive being repaired had been so withdrawn from ._

service that it was not in use in interstate commerce: z

(R., 560.)

The test, as we have always’ understood it, is the par- *

".. ticular service or task at the pafticular time. -Jil. Cent R. R. :

v. Behrens, 233 U. S. 473. What the employment is on

other occasions, even the usual work, ‘becomes immaterial. ,

Shanks v. Del. & Lac. R. R., 239 U. S. 556; see also St. L. &-

San Francisco Ry. v. Seale, 229 U. S. 156. v One. job should

not be subordinated to another=job. ll. Cent: R. R. v.

_- Peery, 242 U.S. 292. It is true the task or service will not

‘ be subdivided into the particular acts which comprise it,

" but will be viewed as a unit in the light of its purpose. -

‘N.Y. Central BR. R. v. Carr, 238 U..8. 260; Louisville & .

Nashville R. R. Co. v. Parker, 242 U. S. 13. . But ‘‘service’’,

as used by this Court, has always referred to the immediate

task at hand; there has beeén-no hesitancy in splitting up a

day’s. work-—Til Cend. R. R. v. Behrens, supra; Tliinois

Cent. R. R. v. Peery, supra; Southern Railway Co.’ v.

Puckett, 244 U. 8. 571; see N. Y¥. Central R. R. v. Carr,

supra, at page 262. ° Other courts .have ‘so: understood.

Onley.v. Lehigh V.\Ry. Co., 36: F. (2d) 705 (C, C. A. 2d),

cert. denied, 281 U. S. 743; Boyle v. Pennsylvania R. Co.,

228 Fed: 266 (C. C. A. 3d); Sullivan v. N. Y. N. H. & H.

RR. Co., 105 Conn. 122, cert. denied, 273 U. S. 754. The

Court of Appeals has given the term a broader: meaning, us-

ing it as a synonym for general employment. Gramatically,

of course, this is permissible; one may even speak of all

railroad employees as engaged in ‘‘railroad service’’. But

the word has become definitely connected with the|interpre-

- tation of the Act by. sanction from this Court. And the de-

cision sought to be reviewed involves such an enlargement

16°:

9

of its connotation in this connection® as ‘materially fn

broaden the scope and application of the federal statute,

It may be that this-is‘a correct prediction of the future. de.

velopment of the law. If so, this is a matter to be pro

~ nouncéd upon by this Court. Although this Court hag,

since the enactment of the statute, laid down general tests

for determining interstate cémmerce, we can find no Tear

approach, in its several decisions, to the far-reaching prin.

ciple announeed here by the Court of Appeals.

We submit that to call-plaintiff’s work “plant service”

is mere verbalization. He. was doing nothing with refer.

ence to the maintenance, repair, or construction of the

plant. Probably his general employment was so metimes i in

interstate commerce, sometimes not. But even’ “assuming

continuous. general interstate: work up to the day of the

accident the decisions of this Court compel consideration

‘of the particular work at the time. If the particular service

is in conflict with the general work the Court of Appeals

should have disregarded the general work, instead of doing .

- which it disregarded the particular service which lasted at.

least two hours and was definite as to instruction, ‘kind,

place. '

| The state court should have inquired into the question

whether the particular engine had been withdrawn from

. commerce. In Minneapolis & St. Louis R. R. Co. v. Win-

ters, 242 U, S. 353, the period of withdrawal was three days.

Curiously enough in Conklin v. N. Y. C, R.-R: Co., 238 N. Y.

. 270, cert. denied, 266.U. S. 607, the period of withdrawal _

five ‘days, in Leslie v. Long Island Co., 248 N. Y. 611,

the period of withdrawal was a few hours; and in Morini

v. Erte R. R. Co., 253 N. Y. 539, the period of withdrawal

17

a but a day, and yet the Court of Appeals considered the -

ina car anc. held it to be withdrawn prom cormmerce. :

; — ical the use of the engine was exclusively ir in-

" terstate'it may be withdrawn from commrece. Chicago,

K. @ S: Ry. Co., v. Kindlesparker, 246 U. S. 657 ; aise

Commission v: Davis, 259 U. S. 182.

As aiibioitiy for failure to determine whether at the:

time of the accident the locomotive being repaired had been

withdrawn from interstate commerce the majority opinion :

of the Court of Appeals refers. to, among other cases, Erie *

’ R, RB: Co, v. Collins, 253 U. S77; Pedersen v. Del., Lack.

_ West. R. R., 229 UP S.: 146; Shanks v. Del., Lack & West. -

R. B., supra; New York Gent. R. Co. vy. Hace 281 U S.

845; Erie R. R. Co. v. Szary, 253 U. 8. 86. - The dissenting

opinion says that such decisions are readily distinguishable.

because the workmen &t the time of their injuries were em-

ployed in duties directly affecting both interstate and intra-

state aie irelenicacal (R. 519).

. We had supposed that the time element i is the time of the

injury (Shanks v. Del,, Lack. & West. R. R., supra) ; that,

the service is the particular Service or task when the i injury —

occurred (ZU. Cent. R. R. v. Behrens, supra) ; that that serv-

— ice or task is the work in question (Pedersen v. Del., Lack.

& West. R. R. ita iate

_ In the case at = there was no direct or ‘eneitbeis con-

nection with previous acts. The particular act was the

whole work for at least two hours, gave character to the .

work then being performed. Piaiitiff’s rank or title or .

previons job is immaterial. Southern a _ v.

«

“g

18

‘Puckett, supra.’ Certainly he.was not engaged, throughout

the days, in a single and indivisible task, and what he did

on the, day of the accident, prior to the two hour period, is

vague. Nor have we the case of. an employee going to or

from work, discharging a duty of his employment which

partakes of the character of the work as a whole. Erie

R. R. Co. v. Winfield, 244 U, S. 170, 173. The plaintiff wag

not merely upon the premises, on duty but not performing

any particular service st-the time. Nor. Car. R. Co.-y,

Zachary, 232 U.S. 248; Erie R. R. Co. v. Szary, supra; New |

York Cent. R. Co: v: * Matwane, supra. -

In Erie Re R. Co. v. Collins, supra, this Court found

‘both the instrumentalities and employments: gave interstate.

color to the work... Mn Erie R. R. Co. v..Szary, supra, the

plaintiff prepared sand for immediate use by engines, some

of which were engaged in interstate commerce. We find

nothing said by this Court that: serves as‘a basis for the

point of view adopted by the Court’ of Appeals, with its

utter disregard of particular service’at the particular time,

its express refusal to consider that phase of the problem.

The judgment of the Court of Appeals is not in aceord -

with the applicable decisions ofthis Court, at any rate, it .

decides a federal question of substance and importance not

heretofore delefiined by this Court. - oe

The decision affects many thousands of railroad em-

ployeés engaged in so-called ‘‘plant’’ work. Although nat

. unanimous, becatise of the high standing of the Court of .

.* Appeals of the State of New York it will have great in-

fluence throughont the country. After *'l these years and

“~

719. oe

4 ‘aaa pronouncements we still have an interstate question

which, we respectfully submit, ‘fully deserves —-

by: this Court. |

-

* ponte oes oe

At the most plaintiff 7 a fact question that should “_—

been submitted to the jury.

Even where substantial contradiction was doubtful this

Court approved submission of a case to the jury.. Nor. Gar.

R. R. Co. Af Zachary, supra, at p. 261. Please see also -

Penna. Co. v. Donat, 239 U. 8. 50, 52; Southern Railway v.

Lloyd, 239 U. S. 496, and cases cited; Louisville ¢ Nashville.

R. RB. Co. v. Parker, supra. in issue is ‘one. for the |

jury’s determination if different inferences can be drawn

by reasonable men from the facts concerning it, even where

the facts. themselves are not i in dispute. Richmond & Dan-

. ville Railroad v. Powers, 149 U. S. 43; Boston Elevated Ry.

Co.'v. Teele, 248 Fed. 424 (C.C.A. 1st); Wisconsin & Arkan-

sas Lumber .Co. v. Day, 35 F. (2d) 563 (C.C.A. 8th). Peti-

tioner adequately raised this question (R. 431).

*

While all the state judges dealt with the problem as one

of law, apparently the trial judge and the five judges in the .

Appellate Division considered engine status as material, «

five in the Court of Appeals as immaterial and two in the

Court of Appeals concluded —" was not engaged in -

interstate commerce.

‘”

"CONCLUSION

ue lt, trefore, reply ebmited hat tis cae

_ calling for the exercise by this Court of its supervisory: ps

_ order that the judgment of the Court of Appeals of the Stats

«New York may be reversed an that to such an end a writ of |

- tiorari should be granted and Court should review the deci

of the en and finally regerse it. = Q

JOHN M. GIBBONS) e

. Counsel for Petitio z

Epwarp R. Brusey,

FLEMING JAMES, Jr. _ ;

Of Counsel. °