Petitioners Brief — New York, NH & HR Co. v. Bezue

‘Ocuemn Tebae, 1931

é 7

No. 263

THE NEW YORK, NEW HAVEN AND HARTFORD

" ° RAILROAD COMPANY,’

- against

CLARENCE BEZUE,. 3 wet a>

Respondent,

a =

‘PETITIONER'S BRIEF

JOHN M. GIBBONS,

Counsel for Petitioner.

' Epwarn BR. BruMiey, |

Samana JAMES, JR.,

Of Counsel.

|. &, W. TRAVER, Law Printer, 154 Nassau St., N. Y. (Tel. BEekman 82726)

Se ae

™ i

°

anal

—

SUBJECT INDEX

I, The Opinions of the Courts Below

Il. Jurisdiction of this Court

aL. Statement of the Case

IV. Specification of Errors.

¥. Argument .

Suminary of Argument

Point A. The particular service performed

by respondent at the time of his injury was

+ repair of a locomotive withdrawn from trans-

portation so that neither the instrumentality

nor the character of the’work c¢ould be inter-

ME <6 naaes eee Tre eT). Cee ee Véewes

Pornt.B. The character of the ‘work which

respondent did at other times is immaterial. .

_ PorntC. At the most respondent presented

a fact-question which should have been sub-

mitted to the jury ................ Bisbee 54 23

. eo. id : 4

. Conclusion

li

TABLE OF CASES CITED: +

B: & 0.8. W.R.R. v. Burteh, 268 U. §, 540, Riek aay as 18

B. & O. R. R. Co. v. Branson, 242 U.S. 623.......... 16°

Barlow v. Lehigh Valley R. R. Co., 214 N. Y. 116..... 3

Chi., Burlington & . R. R. v. Harrington, 241U.8. \

inde ee ECT TT Oe tT ae hakeons + 18,21

| Chicago, K. & S. Ry. Co. v. Kindlesparker, 246 U. S.

voided eae OT eT Te ee a ‘<eiend 4,16, >

| Chicago & North Western Ry. Co. v. Bolle, U. S. Su-

preme Ct., November 23, a ee 12, 20, 2

Chi. & Rock Island R. R. v. Devine, 239 U. S. 62. icot ae

| Chicago, Rock Island Ry. v. Wright, 239 U. 8. 548..." 18

_Del., Lack. & West. BR. R. v. Yurkonis, 238 U. S. 439. 18

Erie R. R. Co. v. Collins, 253 U. Se Peep aed “15, 18

Erie R. R. Co. v. Szary, 253U. $.86............... 18,23

Erie R. R. Co. v. Winfield, 244 U.S: 170............. 22 |

Erie Railroad Co v. Welsh, 242 U. A Oeste wasn al

Grand Trunk Ry. Co. v. Lindsay, 233 U. S.42........ 7

| Great Northern Ry. v. Otos, 239 U. S. a Oe 18

Ill. Cent. R, R. v. Behrens, 233°U. 8. 473...0........\20,21

Ill. C. R. Co. v. Cousins, 241 U. 8. 641....0.2.00.00..°

" Ilinois Central R. R. Co. v. Peery, 242 U. 8. 292... a

Industrial Commission v. Davis, 259 U.S. 182..... 4, 17, 20 :

Jobnnon v. Southern Pacific Co., 196 U. S.1..... |

- PAGE

Kinzell v. Chicago, M. & St. P. Ry. Co., 250 U. S. 130. 19, 22

Law v. Illinois. Cent. R. Co., 208 Fed. 869

Minneapolis & St. Louis R. R,. Co. v. Winters, 249

WU: S. 353

-.New York Cent, R. R. Co. v. ie 949 U.S. 168. ag

New York Cent. ete. R. R. Co. v. Tonsellito, ee! U. -

360

New York Central R. R. Co. v. White, 243 U. S. 188. ..18, 19 ©

New York Central R: R. Co. v. Winfield, 244 U. S.

Senicien v0. X. N. H. & H.R. R. Co, 981 US, 128 3

Norfolk & Western Ry. v. Karnest, 229 U.S. 114.....17,31

Nor. Car. R. R. Co. v. Zachary, 232 U.S. 248. - 18, 23,24 .

6 Pecos & Northern Ry. v. Rosenbloom, 240 U. S, 439.. 24

Pedersen v. Del., Lack. & West. R. R., 229 U.S. 146. . 19, 21

Penna. Co.'v. Donat, 239 U. 8. 50... .0.-cesccce-.. 22, 24

"Phila. 8. &W. BR. Co. ¥. Smith, 250 U. 8. 10 9

4 \ Phila, & Rend Ry. Co. v. ines: 253 U.S. 984 A

\ a & Read. Ry. Co. v. Polk, 256 U.S. . 332.

oe

y

ees

iv +

PAGE

_ St. Louis, San Francisco & _— Ry. v. Seale, 229°

eh ie das deaeN bed cade acvue seek akaR ewe. |)

Seaboard Air Line v. Koennecke, 239 U.S. 352...5.5.. 5%

Seaboard. Air Line v. Moore, 098 U.S. oe REET EET 18, 4

Shanks v. Del., Lack. & West. R. R,, 239 U. S. 556. .18, 19, 20

So. ‘Pac. Co. v. Industrial Accident Comm., 251 U.S

a tert ices See em bu een *y - *

Southern Railway v. Lloyd, 239 U. S. Wes ccsias oy

- Southern. Railway Co. y, Puckett, 244 U. S. 571. eee 21M

- Walsh'v. N. ¥., N.H. &H.B.R, Co, 288 U.S.105... 18

a

en

TABLE .OF STATUTES CITED

Act of cn April 22, 1908, e. 149, §1, 35 Stat. 65. vee od

Act of Cong., April 5, 1910, ¢. 143, §1, 36 Stat. 291. . a

"Act of” Cong,, June 7; 1924, . 355, §2, 43 Stat. 659. 8g

Roe APPENDICES

APPENDIX A: |

. Act of Congress of April 22, _* c. 149; §1, 35

cit ee

APPENDIX B:.

Act of ‘Congress of June y 3 _— c. 355, $2, red

Stat. PUPPET RTE TET ee ree re 3 26 |

“ Supreme Court of the United States.

Ocroser TERM, 1931

No. 263

+

Tue New York, New Haven np

Hartrorp Rattroap. Company, »

- Retitioner,

against

CLARENCE BEzvg,

eee _ “Respondent.

2 .

* BRIEF ON BEHALF OF THE PETITIONER, THE

_ - NEW YORK, NEW HAVEN AND. HART.

FORD RAILROAD COMPANY

- The Opinions of the Courts Below

The opinion, including the dinsentioa opinion, in the

- Court of Appeals is reported in, Bezwe v. The New Y ork,

New Haven and Hartford Railroad Company, 256 N. Y. 427,

decided. June 2, A931 (R.; ee) ..

& - |

The memorandum decision of the Appellate Division,

_ Second Department, is ee in "232 N. ¥. App. Div. 840

_ (BR, 487).

The ‘trial couiry/-wrote no as (R., 482).

rete

Bs

!

} .

° 8 |

.

.

o*

.. .8um of $50,000, otherwise the judgment as modified-and the

_ the judgment in favor’of the plaintiff, and also from the

_« the said judgment; and-made a judgment and order. of af- q

ee ‘Respondent ( plaintiff below) was injured September q.

°1929, at Maybrook, New. York, while in:the employ of the. . |

» . Pi ; es : 7

. 4 4 a = * rt?

f , 5

*. goa . ‘ : ‘ ; "- f ;

/ es - / , 3a ar:

Py Oe 2 i ate |, : ‘2

4 if

) ia 3a .

= My ¥ + Y iad -_

ee: Jurisdiction of this Court > : : 4

This Court granted petitioner’s application. for writ of |

certiorari on October 19th, 1931 (R., 503). _ ae |

rs | ll . -@ : | | j

Statement of the Case

This is an action for personal injuries brought. under

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

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

c. 143, §1, 36 Stat. 291). The issues came on for trial before.

a Judge and a jury in the Supreme Court, Putnam County,

New York, in September and October, 1930, and resulted in '

a verdict in favor of the plaintiff and against fhe defendant |

for $60,000 (R.,; 4;-252-355). ‘ The Appellate Division of the _

‘Supreme Court, Second Department, reversed the judgment

and order upon the < and the facts and granted a new ~

‘trial, unléss plaintiff ipulated to reduce’ the verdict to the |

order were unanimously affirmed. 232 N. ¥.. App. Div.’ :

840. Plaintiff so stipulated (R., 1; 486). Thereafter peti-

tioner ‘appealed as of right to.the:Court of Appeals from

order of the Appellate Division ‘modifying and reducing’

the judgment (R.,.483, 484). The Court of Appeals’affirmed

firmance dated June the 3rd, 1931 (R.} 495, 496). - ~

. petitioner (defendant below). He was assisting ‘to move

a pair of main driving wheels belonging to engine 3221 and

was thrown over the journal of the wheels when a block

was removed and they rolled backward ee

He went on duty, at eight o’clock in ‘the morning and

‘the aecident happened about 110 (R., 110).

The majority opinion of the Court of Appeals said that

respondent was engaged in a plant service, and it did not

matter ‘‘that at the moment of injury an employee was

|. temporarily at work on a locomotive or some other instru-

« mentality not engaged at the time in interstate commerce’?

(R., 491). Because in character the roundhouse was an és-

‘sential. instrumentality of interstate commerce, his plant .

‘service was-also of this character, according to. Judge ~~

Hubbs. | | Cre he 2 Go *

_ The dissenting opinion by Judge O’Brien, concurred in

by Judge Kellogg, says in effect that the locomotive was

withdrawn from commerce, that the character of respon-

dent’s employment on other occasions is immaterial. ‘‘His

energies were directed toward an object which was not an ~

|. instrument of commerce’’. (R., 495). ; ate

The majority opinion of the Court of Appeals seems to.

be based partly upon fear of an unsatisfactory result to

. . the employee if any other conclusion is reached. In Barlow

¥. Lehigh Valley R. R. CR, 214 N. Y. 116 (reversed in 244

_ U.S. 183), the anomalous situation was recognized but leg-

islation was. considered the only possible remedy (p. 121).

| Different rights at different times is a familiar consequence

but hardly a reason for a special conclusion. See Nogueira

| UMY,, NH. @ H.R. R. Co., 81 U. S.198, 137.

P eparbaettas ; =a =

™“

-_ _ service, but the difficulty with the Law case is the failure.

4

The teal court, ‘adopting another asim, upon the av.

thority. of Law v. Illinois Cent. R. Co., 208 Fed. 869 (Cc

C. A. 6th, 1913) held that plaintiff was engaged in inter. |

state commerce because the engine was nat withdrawn from

of the Cireuit Court of Appeals to give consideration to

gtime required for repairs (p. 872), which is contrary to the {

views of this Court in Industrial Commission v. Davis, 259 |

U. S.. 182. In the latter the District Court of California,

relying upon the Law case, was reversed. : In Chicago, K..

é S. Ry. Co. v. Kindlesparker, 234 Fed. 1, the Circuit Court: |

of Appeals, relying upon the Law case, was } overruled by

. this Court. - U.S. 657.

The sole it question presented i is whether the

respondent ““was engaged in interstate transportation or in *

work so closely related to such transportation as to be prac-

tically a part of tt. Chicago & North Western Ry. Co.¥.

mete, decided by this Court. on N ovember 23, 1931.

_ Respondent’ tte work :

Two hours or more before he was ‘icieath early in the

morning, respondent’ s foreman told him to help move a

main pair of driving wheels of engine 3221, then in the

lathe in the Whiting Hoist building. With his truck he re-

. moved a heavy block from the lathe, and then assisted in

rolling the wheels from the building to a switch, a distance

of 619 féet, and from thé switch to the place of the accident,

1062 feet th, 135-139, 111-117, 257, 258).

These very ry main driving whpels, from engine .

" 3291, emcn which it could not run, had been -— to

o:

i)

©

this back shop or Whiting Hoist building ‘and_ repaired

‘(R., 112; 133-136, 219, 220, 262). ‘They are indicated by

an X on Defendant’s Ex. P (R., 480, 271, 272). See also —

Defendant’s Exs. Nand O (R., 476, 268, 269; and 478, 269,

270, respectively). . . he | | |

The wheels were rolled from the. Whiting Hoist building

upon the turntable, in front of the roundhouse, then off and ’.

placed on track No. 17. Engine 3221 was pulled by another

‘engine upon the table so the wheels could be placed in the

pit of the track and applied to the engine (R., 113, 115, 278,

22, 330, 332).: ; wa

While the men waited for the signal to. move the wheels -

forward out on the ‘turntable again. they started. rolling

backward, resulting in the accident to the respondent /

111-117), 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., 115).

The following morning they were to go under the engine, .

* but respondent had nothing to do with the ‘placement of .

them on the engirie (R., 258). In fact, respondent never

assisted in the actual applying of wheels to an engine (R.,

146). So we see he is removed stili farther from transpor-

tation, having nothing to do with the operation of 3221 or

with any work incident thepeto. ° Although he had not often

assisted in this kind of work it belonged to the job of the —

i

unskilled labor force .(R., 142, 261),

‘Part of the repairs of the enging could have been done -

_ on only four out of twenty-seven tracks, and in two out of

the three sections of the roundhouse, ‘because the other

_ tracks were not equipped with'a drop pit (R., 131, 132, 205,

- - 206, 257, 262). This physical limitation, aside from all

~

(

Ra

. ; : 6

other consideratioris, serves to particularize and separate

the job at hand.

His acts in reference to the engine had no more relation —

- to transportation than thdse of the machinist, for instance, |

who spent eight to. ten hours turning the journal (R., 265,

.266). He*faced no casual labor for with his own helper --

(R., 118, 193), the removal from the lathe and the rolling

of the wheels required some 5 to 10 men (R., 139, 159- 161,

163, 278, 279, 330, 331). This was not one of the “‘small

jobs’’ respondent had early described (R., 111), but a big

job in time consumed, ntumber of men involved, exertion

—

Neither the‘acts of service performed ™ the respondent

nor the instrumentality under repair possessed the char-

acter of interstate transportation within the purview of -

the cases cited under Point A.

Engine 3221 was withdrawn from service

Engine 3221 did not have a designated run (this ap-~

pears from an examination of Plaintiff’s Ex. 15-B cover.

ing the period August 10th to 23ré, 1929, and Plaintiff’s -

Ex. 15-A covering the-period September 4th to September

18th, 1929 [R., 397-422, 367-395, 210-212, 226-234, 243, 244]).

During both these periods it had been sana’ in interstate «

commerce,: and also, when in use, from. September and,

1928, to August mm, 1929 (R., 224, 225).

It is also true that for the- ‘period September 3rd, 1927,

to September 3rd, 1928, this engine 3221, when in ‘actual

use by the petitioner, and when operating in and out of

A ee

Maybrook, New York, or in the Maybrook Yard, New York,

- was engaged in interstate commerce, although the record

does not disclose whether during this last named period

it had been used on any other division sk. 225, 226).

v

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

the accident occurred September 2nd,. and it left on Sep- |

tember 4th,—a period of twelve days. 7

Defendant’s Ex. I (R., 458-460) is an abstract of the

inbound inspector’s report, engineers’ report, and house

ona

inspectors’ report. The first two sheets contain thirty-© .

eight itefns, and the third sheet sixteen additional - items

(R., 221, 222, 184-186, 247, 263, 189, 203-205). ‘*Yes’’ on

these three pages means that the job was completed (R.,

246).

Defendant’s Ex. J. (R.,' 464-468) shows what it was

necessary to do to accomplish the major items ‘as reported

— ” 222-224). Repairs held for the thirty-day period could

‘not | e/handled between runs (R., 263).

_+ During those twelve days at Maybrook the ‘main

‘driving wheels of: this engine were removed to the back

shop, ‘the journal or .axle turned, the latter task involving

.» eight to ten hours of labor, several parts of the engine were

' taken to the machine shop, the fire dumped, the jacket over

- the fire-box taken off, the boiler of thé engine washed, and

various other jobs attended to as appears frem. Defen-

-_dant’s Ex. I (R., 458-460, 179, 219-221, 253, 254, 266).

To repair 417 leaking bolts would take two skilled men

five days (Item 8, p. 3,.Defendant’s Ex. I, R., 458-460,

249, 250). To renew certain bushings would take two. men -

\

I

8

thirty-two hours (Items 26-35, p. 2, Defendant’? s Kx. L R,,-

458-460, 252, 253). As a/matter of fact skilled’ labor was

performed on all days of the period excepting August: 24th

~ and! 25th (R., 260, 261). Of course, with the main driving

wheels off the engine could not move under its.own power .

(R., 262); just before the accident was pulled by another

engine (R., 330).

In one part of the opinion by Judge Hubbs of the |

Court of Appeals it seems to be assumed that the instra- :

mentality was not engaged at the time in interstate com

merce, although the court deemed it unnecessary to de.

termine this, and certainly the dissenting opinion of Judge.

O’Brien argues that the engine was withdrawn from serv-

ice, was ‘‘a useless thing, incapable of allocation to com.

merce of any kind.’’ It, therefore, seems to be the opinion |

of the Court of Appeals that the equipment i involved Was |

out of service, and when we consider the fact situation,

the character of engine 3221 at the time of the accident—

the nature of the repairs, the time consumed in making

them, the several places of repairs, the condition of the

engine at the time of the accident—we think there can be

little doubt of its complete withdrawal from transportation

of any kind. |

Admittedly this engine was undergoing a boiler. wash

'. and inspection, in. accordance with the Act of June the

‘Tth, 1924, c. 355, §2, 43 Stat. 659, providing against “use”

when not in ‘‘proper condition.”’ This boiler wash always.

afforded opportunity to°make many additional repairs,’all

in this case between August 23rd and September the 4th

(R., 209, 253). Repairs during a mere layover between

“runs were one thing, repairs requiring a longer time were

quite ‘another, and, when possible, held for the boiler wash

_— (R., 263). . |

. ®

"The railroad buildings at Maybrook, New York

The traffic handied at Maybrook came from the Lehigh

& Hudson, the Ontario & Western, the Erie, the Lehigh and

New England, besides petitioner’s own road (R., 206, 207).

Some of the foreign engines were repaired there (R., 231).

Jennings was aptly called the general foreman at the May-

. brook engine house terminal (R., 226).

The roundhouse ‘or engine-house had three subdivisions’

-with twenty-seven tracks, and a turntable in front (Defen-

dant’s Ex. C; R., 450; 131, 132, 205, 206, 257), and four

tracks with drop pits (R., 262).

To the right of the roundhouse was a machine shop, con-

taining a room about 70 feet long and 40 feet wide. with

| very considerable machinery in it (Defendant’s Ex. L;R,

472; 268, 333). |

| os

To the right of the machine shop. was a small building

used for a carpenter shop and other purposes (Defendant’s

Ex. J; R., 462, 256, 257). |

‘To the right of this small building was the so-called

Whiting Hoist building, about 100x93 feet, showing at the

. extreme right of Defendant’s Ex. J (R., 462; 257, 219, 255,

_256). Here were four tracks, two with pits, and a Whiting

'. Hoist having a capacity of 400 tons, used for raising en-~

gines over driving wheeis.. In the interior were a lathe that

held driving wheels, and another lathe for electric welding.

This building also had a tool room and electrical shop

.(R., 255, 256). a | 7

“The main pair. of driving wheels of engine 3221 had been

ote

a

taken to this build, and the journal turned (R., 954).

(Lathe in room shown in Defendant’s Ex. D; R., 452} 254.) -

Some of the side rods and other parts of engine 3221 were _

taken to the machine shop room, which we have described,

“ -and some of the work on the engine was done there (R., ;

219, _—

“The tracks leading to the Whiting Hoist building? ir in-

"eluding the tracks on which the wheels were rolled onthe -

. day of the accident, are shown in Defendant’s Ex..K (R,,.

470; 267, 268. . Also Defendant’s Ex. L; R., 472; 268). The

inate leading into the roundhouse, including track 17 on

which the accident éccurred, are showri in Defendant’s Ex.

M (R., 474, 268). The trucks ran alpng concrete floors from

the roundhouse to the various buildings ts 215, 216).

It is obvious that. this Maybrook | Terminal, with its.

buildings affd equipment, was not merely a place of lay-

over for engines. Even the so-called roundhouse alone was |

a place of repair over the drop pits, and the plant also in-

cluded a machine shop, carpenter shop, and back shop or

Whiting ‘Hoist building, with skilled and unskilled forces

: p of labor there-to the number of about 203 (R., 333). The

trial court recognized the relevancy of this. line of proof wl

. of surrounding — (R., 255).

a

a

‘Eatine mee — at nee Terminal

While isbat of the engines at the Maybrook —

were engaged i in interstate commerce when in use, some of

them operated within the State of New York (R., 217,

229). Of course, this becomes immaterial in the event ©

” such engines were’ withdrawn at various times from all:

_ commeree al — of — The. evidence would seem .

| fe ee

a 10. diyjde repairs into. three elasses—minor repairs ‘that ©

* could be made between runs, repairs taking a longer time

that could not be made - ‘between runs ‘and were -at-

tended a the boiler wash, and inspection period, and

classified epairs made after the engine had ‘gone approxi-

mately 35,000 miles, or about every eighteen months. : These .

last repairs\were made at Readville, Massachusetts (R..,.

264, 189, 224). All engines operating in New York under-

_. went a boiler wash every thirty days, and also a thirty day

_inspection (R., 209). To say the engine was not withdrawn _

from service is to say that only once every eighteen months

such an engine was withdrawn when undergoing a complete. .

| dismantling at Readville.

e

ss | . Respondent's work: « on 1 other occasions ;

‘Respondent had ies in the employ of sitiinints for =

ie nearly a year, at Maybrook, working ‘six days a week (R,, -

105, 129). For the first gight or nine months he was a

wiper of outgoing engines, sometimes in the roundhouse, Kas

sometimes outside (R., 106,129, 130). At the time of the —

accident he was classified as a‘truck operator, under the

__ labor foreman, in the unskilled labor gang. He had no

"engines and no jobs generally assigned to him, being called

upon to do‘ whatever work was required. For instance,

whenever the men working on the engines needed a truck |

they would call for him (R., 107, 146). Respondent re- .

ported to Hessberger, his foreman (R., 135). Defendant’s

Ex. A (R., 448): shows the kind of truck he _operated—an

electric crane for picking up» and moving objects (R., 131,

142- 148).

_. With the truck used for various purposes, he would lift

castings, bring material to the engines, such as grease, pull, ©

|

}

12 .

down ‘grease cups, assist in the adjustment of couplers >.

locomotives, ‘fix brake shoes and pressure tanks, take drive

shafts (but nevez driving wheels) OGhot locomotives to the

machine shop, carry driving rods on. the truck, remove and.

"replace engine pumps, -assist in removing and replacing

' cylinder heads on engines, in moving side and main ‘rods of -

engines to the cleaniig vat and to the machine shiop, and

from the machine shop back to the engines, assist in re-

moving and replacing drawbars between engines and

tenders,, at times*handling heavy material. (For details

see R., 106-109, 142-149, 183, 215-219, 261.) He had to do .

with all the | engines (R., 107).

- There were us sually two electric trucks at’ the ernie :

and respondent almost always used one of them (R., 108,

216). but the unskilled labor gang, to which respondent be-

longed, also cleaned up around the property,-. handled

wheels, cleaned windows, operated. coal pockets, dumped

coal,-ran the turntable (R., 261).

On the day i in question “Fespondent was the only opera- |

tor on duty, so all heavy moving and — must have been

done by him (R., vial ;

\

“

From this description of his duties we see respondent

engaged mostly with a truck, very often carting heavy ma-

terial, at times concerned with - engines withdrawn from

dervite, at other times concerned. with engines not 80.

..withdrawn.. When working without: a truck it is clear that

he might well have ‘no relation to transportation, as

for instance, when he cleaned windows. Sometimes, *‘what

he produced was not used or intended to be used, directly or

indirectly, in the transportation of anything.’’ Chicago é

North Western Ry. wee v. r. Bolle, supra. ee it:

13

“ expressly appears that he had no aati assignment to

give character to his work as a whole.

Respondent went on duty about 8 o’clock in the morn-

ing, the accident happened about 11:30. He did-some work —

With the: truck, but the only definite testimony as to the

» day in question is that for two hours or more prior to the

accident. he was engaged solely with the main pair of driv-

ing wheels of engine 3221, and he did not know, upon the

completion of this’ particular work, what he would next dd

(R., 145), although it turned out that he assisted to lift a

wen rack up in. position on an engine, and that is all we

have (R., 119).

?

ee

Specification of Errors

(1) The Trial Court erred in denying 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 prove interstate

commerce, had failed to prove that he came under the Fed-

eral Employers’ Liability Act, at the time and place of the

accident, that the evidence showed he was not engaged in

‘such commerce at such time and place, that the engine had

been withdrawn from.service, that he was engaged in repair

_work with that engine at that time, that he was not engaged

in commerce or movement in any way (R., 244, =). 7

(2) The Trial Court erred in finding and icin that

, the engine was an instrumentality of interstate commerce,

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

house repairs were being made, and that during that time

gaged | in interstate commerce work upon an instrumentality |

| of-interstate commerce that had _ not been permanently with.

ys drawn. from the.service (R:;245). -. or ”

.. (3): The :

_. , tion for the direction of a verdict in its favor, made at the _

'' £nd-of-the-entire -case, on the ground of ‘mere of proof

(R., 338.

. ee

‘

" we

‘\ ;

*

ete “re

\

a 4,

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

ti

» : : a: « =f

it continyed in the ‘service and was an instrumentality ét

y

interstate commerce, and the plaintiff, at the time was en:

-

a

=

that plaintiff was engaged in interstate commere

at

7 .

Pont The Trial Court erred in denying defendant's mo.

to go to the jury on the question of interstate commerce

, -) : .° ‘ % :

in Court erred in

t

®.

Bar (6), The Trial Court erred in denying defendant's mo- 4

P a" . 7 ; \ . : . : »

‘Frial Court erred in denying petitioner’s mo.

eae

bd ¥

‘

\ ag

(5) 3 its. charge to the jury |

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

; nterstate commerce, and plaintiff te.

See Federal Employers’ Lia. .-°

: bility Act (R., 340)... ie an aes ee

9%

' exéeptions in the judge ’s minutes, that the-verdict was con

_* trary to.the evidence, contrary to the law, and on: the fur: 3

. ther ground Of the exceptions taken to the ruling on the -

question of interstate commerce (R., 354, 355). .

o

cee (7) The Court of Appeals erred in holding that pléin-

tiff was engated in interstate commerce. :

oe. \ .

-.

sree:

' AOTER OF THE Work ‘coup BE INTERSTATE,

. DID AT OTHER TIMES IS IMMATERIAL. =. -

ARGUMENT = +

sera or ARGUMENT

POINT A.

. e ae a ae

a ; f

o »

“$e.

THE PARTICULAR SERVICE PERFORMED BY RESPON-

» DENT AT, THE TIME OF HIS INJURY WAS REPAIR OF A

“LOOOMOTIVE WITHDRAWN FROM TRANSPORTATION 80 ©

THAT N. EITHER THE INSTRUMENTALITY ‘NOR THE COHAB-

POINT. B

«

‘ .

’

‘Tur OHARACTER OF THE WORK WHICH RESPONDENT

-»

POINT C_ ale wae

o | An-tmm qoor azsrosibawt raneaures aro QUss-

| TION WHICH SHOULD HAVE BEEN SUBMITTED TO THE

o

J URY.

ea

- . ‘

Ss

-

. =

16

+0 POINT A.

3 “The aliee.. service performed by respondent at the

time of his injury was repair of a locomotive withdrawn :

from transportation so that‘neither the instrumentality

nor the character of the work could be interstate. “He: 3

As we have said the Court of Appeals treated “ repair }

of a particular engine as immaterial. We think this. was

error, for’ while the task or service will not be split into .

particular acts, on the ‘other hand, the immediate task, the

groupsof acts of service with a unity of purpose, separate .

‘and distinct from other groups with other om is de-

terminative.

| i. Minneapolis & St. Louis R. R. Co. v. Winters, os

U. 8. ,353, the engine was withdrawn for only three days. .

Both before and after the accident it was engaged in mixed _ .

commerce. ‘‘ An engine as such is not permanently devoted :

to any kind of traffic * * *’’ (p. 356). The character of the.”

engine depends upon its employment at the time (p.- 357). |

Please see also opinion of Justice McKenna in ErieR. 2

Co. v. Collins, 253 U. S. 77, at p. 84. A failure to show the

chargcter of the rolling stock results in disaster. B. €0. .

- -R. R. Co. v. Branson, 242 U. S. 623. This is because rolling

- stock ‘‘is not permanently devoted to any kind of traffic.” 4

“The time of withdrawal from use is material on the que

“tion of separation from movements that constitute tran ;

portation, and thé separation gives character to the employ- =

ment as not being in commerce if not immediate to it. Ce

cago, K. 5d 8. Ry. Co. v. einai supra.

te

Some doubt existed as to the character of an engine ex-

" dusively ‘devoted to interstate commerce until the decision

of this Court. in Industrial Commission v. Davis, supra,

_ where it was assumed that the engine was gent from exclu-

_ give employment in interstate commerce to the repair shops, .

‘and after the repairs were’ finished the erigine was finally

_ mission v. Davis, supra. ~ «

t “s

.” put into the. same. kind of service. ” Notwithstanding this.

exclusiveness, when the equipment is out of use, withdrawn rd

for repairs, when the duration of withdfawal is for several

days at least, when there is a withdrawal from service and:

placemerit in new relations, then it cannot be said that such ne

equipment partakes\of the character of interstate trans--

portation. It follows, therefore, that persons ‘employed

_ upon such equipment are not employed in interstate ‘trans-

portation. This.we take it is the holding of Industrial Com-

” Engine 3291. was out of service for twelve days. Part

'. of it was in thé roundhouse, part in the Whiting Hoist .

building, and part in the machine shop.’ The fire was «

‘dumped, and during this time it was ‘*a useless thing, in-

‘ot

eapable of allocation to commerce of any kind.” (Dissent-

ing opinion of Fudge O’Brien in the Court of Appeals in ,

_ ‘the ease at bar). When we also take into consideration the

~

nature and extent of the repairs during the period of with-

, eee a

employment was immediate to transportation. 4 .

This case does not irivolve a‘car waiting to make a trip

i |

, outside of the State (Johnson v. Southern Pacific Co., 196

- U.S. 1); or engaging in a move preliminary to such a trip

(Norfolk & Western Ry. v. Earnest, 229 U. S. 114; Grand —

Trunk Ry. Co. v. Lindsay, 233 U. 8.42; Phila. é Read. Ry.

_- drawal ye are forced to the conclusion that neither the -

character of the instrumentality nor the character of the

18 .

. Co. v. Hancock, me S. 284). a S employziet o

was not an act of preparation in the sense contemplated in ©

‘Nor. Car. R. R. Co, v. Zachary, 232 U. 8. 248. It was not an.

_ engine on which running repairs were being made, n ith.

drawn from service but delayed (Walsh v. N. Y., NvA.d

H. R. R, Co., 223 U. S. 1, commented onin New oe Cent,

R. Co. v. een, 281 U. S. 345, 350; Great Northern Ry. y, .

. Otos, 239 U. 8. 349; Erie R. R. Co, v. Szary, 253 U. 8: 86;

' New York Cenj. B. Co. y. Marcone, supra, at. p. 350). Cer:

_ tainly, the: locomotive was not actually running between

States (Seabgend Air Line v. Moore, 228 U. S. 433). :

It was not the “completion of an interstate trip (B. é 0. °

S. W. R. R:'v. Burtch, 263 U. 8.540). It was not taking an .

engine from one State tp another for purpose of repair. .

‘Chicago, Rock Island. Ry. v. Wright, -239 U. S. 548. It was

not a mere interruption of movement. ‘The service does not:

80 closely relate to interstate transportation: as ‘to be prac-

tically.a part of it. Del., Lack. & West. R. R. v. Yurkonis,

238 IJ. S: 439. It was not repairing or ‘Keeping in usable con-

dition an instrumentality then in use in any commerce.

Shanks v. Del., Lack. & West. R. R., 239 U. S. 556, 559, 560;

TU. CLR. Co. v. Cousins, 241 W. 8.641. We fail to find any ©

direct relation: ‘to interstate transportation. One interstate

‘movement had terminated, another had not yet begun. The. -

. employment was‘two distant to be a-part of or to have close”.

... ‘or direct relation to interstate transportation. Chi., Burling. -

ae ton € Q. R. R. v. Harringtén, 241 U. 8. 177; New YorkCen-

tral R. R. Co. v. White, 243 U. 8. 188, 192; Leign Valley Re

“EE. Oo. v. Barlow, 244 U. sg. 183.

-Regardless of the kind of facility it is apeanrvern necessary ee

to- show ‘fuse’’ in interstate transportation. In dealing =

cae with repair of tracks or bridges we have a permanent de- >

\

_- yotion which satisfies the test except in construction cases

like New York Central R. R. Co. v. White, supra. In deal-

ing with rolling stock, on the other hand, the determination

_of “‘use’’ involves elements of time; nature and extent of

_ Jabor, place of repair, separation from such transportation.

Erie R. R. Co. v. Collins, supra, involved work on pump

house facilities ; Pedersen V. Del., Lack. & West. R. R., 229

U.S. 146, involved repair of a bridge; New York Central —

. RR.Co.v. Winfield, 244 'V. S: 147, was the case of a section *

_ laborer assisting in the repair of main line track; New York .

* Cent. R. R.. Co. v. Porter, 249 U. S. 168, was that of a

laborer engaged shoveling snow between the track and the

platform ; Phila. B. d W. R. R. Co.-v. Smith, 250 U.S. 101,

was that of an employee assisting in the work of bridge

.- earpenters ;.Kinzell v. Chicago, M. & St: P. Ry. Co., 250

U. 8. 130, was that of an employee engaged in sneceiliag

earth to keep a track open for ‘traffic; So. Pac. Co. v. In-

dustrial Accident Comm., 251 U. S. 259, was that of a-line- .

man engaged in wiping insulators supporting main wire in

mse at the time. Such cases are ‘readily distinguishable _

- because of the ‘‘repairing or keeping i in usable condition a

roadbed, bridge, engine, car or other instrument then in use

" in'such transportation.”” Shanks.v. Del., Lack. & West.

BR. R., supra, at p. 560. ae

19

ce POINTB |

= ths chaaeten 66 the ‘ead whitch respondent did ot”

. times is immateral. + :

- “Whether we look at the character of the instrumentality a.

ge the particular service, or the character of the general

at the - question presents itself for mascicey vier |

- i

- &

. ing a drag of intrastate. cars, was held to be engaged in

respondent was ‘‘engaged in interatate transportation ¢ or. 3

in work so closely related to such transportation as torbe . |

‘practically a part of it.’”? Chicago & North-Western Ry.

Co. v. Bolle, supra.. Notwithstanding this recent decision, — j

because ‘‘a precise. ruling, one that enables an instant and

undisputed application, has net been attempted to be laid

down,’’ and because ‘‘we are brought to.a consideration of

degrees” (Industrial Commission v. Davis,'swpra, at pp, -

. 185, 187), we here attempt a review of the law with special

. reference to the facts of.our case to show that the character

of the work he did at other times is immaterial.

The circumstance that respondent was engaged in inter-

state transportation on other ogcasions does not, in and of

_ itgelf, make any difference as is clear from the opinion of

Mr. Justice Sutherland in the Bolle case. ‘This practical

sense point of ‘view “in the interpretation of the Act, this

confinement to. particular service, runs through the deci-

sions. In St. Louis, San Franvisco ¢ Téxas Ry. v. Seale, -

229 U. S. 156, a clerk went through a yard to mark the cars’

for the switching crew. Although his duties related to both.

‘kinds of traffic the opinion by Mr. Justice Van Devanter —

does not discuss his.general work but relies solely upon th¥ 3

proof that the train in question was interstate and the |

transportation had not ended. In JU. Cent. R. R. ¥.

Behrens, 233 U. S. 473, a member of a switching. crew, haal-

intrastate commerce, although his general work extended —

-to both. In Shanks v. Del., Lack. é West. R. R, supra,

Shanks was altering the location of a fixture, in a.machine -

shop. Mr. Justice Van Devanter said the usual work was

' immaterial (p. 558). In Chicago, K. & S. Ry.- Co.v. Kindles- - H

parker, swpra, the plaintiff was a helper in the shops, § at a

times acted as a fireman, but this Court concerned itself a

ie character of this work was immaterial.

21

| only with his repair work on an engine at the time he suf- |

fered injury. Finally, in Chicago & North Western Ry. Co.

ie Bolle, supra, respondent had supplied engines with coal

-.. and water, fired live engines, turned a turntable, but the

9

Congress did not legislate as to general- work sdalininass

stuns good reasons for doing so (Ill. Cent. R. R. v. Behrens,

supra, at p. 477). This, we take it, was back of the expres- -

sion of Mr. Justice Brandeis in his dissenting opinion’ in a

New York Central R. R. Co. v.. Winfield, supra, at p. 1.

N either previous nor. future employment. is of any im-.

portance. IU. Cent. R. R. Co. v. Behrens, supra, at p, 478;

Chi., Bu: tington & Q. R. R. v. Harrington, supr&, at pp. 179,

180; Southern Railway Co. v. Puckett, 244 U. S. 571, 574.

Mere expectation of interstate work in the immediate future

does not bring a case within the act, Erie Railroad Com-

pany v. Welsh, 242 U. S. 303; Minneapolis &.St. Lous R. R.

Co. v.. Winters, supra, at p. 357. One separate and distinct,

service is not to be made an incident. to or subordinate to —

- another separate and distinct service., TDinois Central _ *

* BR. Co. v. ne Pee S?292. 7

Respondent was. performing a separate and Satine:

Service, had been for two hours or more, in connection with

-an engine withdrawn from service. It was not like carry-

Ing material to a bridge to repair it ‘(Pedersen v. Del., |

.. Lack. &@ West. R. R., supra, at p. 152), or taking an engine _~

from a roundhouse to a track to haul an interstate train

(Norfolk & Western Ry. y. Earnest, supra), or handling a

. @ar waiting to be moved in an interstate run (Johnson v.

Southern P. Co., supra). Each was clearly ‘a minor task

i of a larger one. | |

a

99

The fact situation in the case at bar is obviously very

different from that of New York Central R. R. v. Carr, %

U. S. 260; where a brakeman placed: two intrastate CATE oq,

; @ side-track so that the interstate train might proceed, The

act was done to further the later work. In Pennsylvanig

. Company v. Donat, 239 U. S. 50, it was necessary to remoy

. two empty cars to complete an interstate movement, hh

Southern Railway Co. v. ‘Puckett, swpra, plaintiff assisted

in raising a wrecked car to extricate an employee but for

the immediate purpose of opening a way for interstate

traffic. In Louisville & Nashville R. R. Co. v. Parker, 19

U. S.-13, a fireman moved an empty car to reach and move

an interstate car. These references show how close the acti

were to actual interstate transportation, and thé interstaté

purpase. :

So the work in Kinzell v. Chicago, M. &: St. P. Ry. Co,-

supra, had. the ‘double. purpose of spreading earth

to widen ‘an embankment and to keep the track open. for:

traffic, So the service of a. flagman at a public crossing

concerns the safety of both commerces, and safety of track

Phila, & Read. Ry. Co. v. Di: Donato,-256 U. S. 327. ‘None

of these cases departs very far from the clear situation in

Phila. é Read. Ry. Co. v. Polk, 256 U. 8. 332, where a mem:

her of a crew handled a draft of freight cars, some inter

State, some intrastate. 9- t™ oe

Furthermore, to continue this same negative liné of

reasoning, the work respondent was doing at the time did.

_ not partake of the character of his work as a whole. It was

more an incident of one part than another. Illustrations

~ Yeadily occur showing the differ 1ce—leaving the yard #

_ the close of the day’s work (Brie R. R. Co. Vv Winfielt, .

244.U. 8. 170); remaining on emises after completion @ —

/

93

work (Erie R. R. Co..v. Szary, supra; New York-Cent. R.

Co. v. Marcone, supra, at p. 350). In thegé cases we find

~- merely incidents of interstate veciicoiaall intimate: rela-

- tion with it, interstate employment ‘a necessary objecti

possibly a temporary absence from usual place and kind of *

work. A mere change of physical position ig not, of course, - 2

- determinative (Nor. Car. R. R. Co. v. Zachary, supra, at Pp.

260). But in the case at bar we have a great deal more

than that, and affirmative as distinguished from negative

- conduct. : Pe, | :

Af

At the most respondent presented a fact question

_ which should have been submitted to the jury. fe

The case may be considered from two angles: |

. . cl. Does the evidence fail to’show respondent was

_ engaged in interstate transportation when injured?

2. Does the evidence tend to show respondent was *

‘not engaged in interstate transportation?

TE the evidence «9 to sustain respondent’s burden

_ there can be no recovery as a matter of law. If the exidence ‘

even tends to show he was not so engaged then the question

Should have been given to the jury. We submit that we

have shown a failure of proof and that, therefore, the trial

' curt should not have ruled, as a matter of law, that respon- .

dent was engaged in interstate commerce.. a

# But if different inferences can be drawn by reasonable

men from the facts, even. though the evidentiary facts-are

Peek. ~

es 2, Fane

Pe es oe at

not. in controversy and the ultimate conclusion is 8 mixed

finding of law and fact, -then the 1 issue is one for the jay.

&

Such treatment was approved by this Court in the: ta.

wt be cases among others :

Seaboar \ Air Line v. Moore, supra;

_ Nor. Car. -R. Co: v. Zachary, supra;

+ Penna, Cé.\v. Donat, supra; es

Chi. d Rock\Island R. R. v. Devine, 239 U. 8.88, |

Seaboard Air [a v. K onnnaene, 239 U. 8: "

355;

Southern ihidinsy v. Lloyd, 239 U.S. 496. ps:

: -- Pecos & Northern Ry. v.. an 240 U. 8. 3

$ Re 439 ; :

Louisville € N ashville R. R. Co.. v. Parker;

- Supra; ,

New York Cent., etc. R. R. isl v. Tonséllt, us "

—_—

CONCLUSION

\ The test is the particular ‘service or task at the paitions:

lartime.. The word ‘‘service’’ refers to the immediate task

ae ae hand, and this Court has not hesitated to split up 4 day’s .

work. This group of acts was separable from other groups.

-«< by @ long petiod of time and by definite, further, particular |

‘ jneidents of exertion. . The: character of his work at other |

times is immaterial. ‘

: To. all Hegpbeduet! ~ work ‘lant service” adds noting —

to the solution of the-problem. At the ‘time of his injury he 7

-. did not act-with reference to. the maintenance, or |

construction ‘of the plant. His: acts of 8 service can in be refi .

ogly to a withdrawn engine. He had nothing to do with its

~pperation, being far removed from that. Both the character

of respondent’s work at the time involved, and the character

* of the instrumentality upon which that work was, performed :

. force thé conclusion tRat ‘he was not engaged in interstate

transportation: or in work so closely related to it as to

_. be practically a.part of it..¢ | . |

We, therefore, respectfully. submit that the judgment |

of the. Court of Appéals of the State of New York should

- be reversed. Se hee ye a iat |

ie fa . JOHNM.GIBBONS, © ,

‘ Counsel for Petitioner. .

@ 6

~ Epwazp R. BRuMLEY, -

. e j o oOo © .

. Freming JaMgs, JR., ea my :

’ Of Counsel. |

‘ J

i . te

; ls

| Re, Se,

Stee Res

: a

/

s

; Xf

- @

ee

APPENDIX A

Federal Employers’ Liability Act. e

_ Act of April 22, 1908, ©. 149, $1, 35 Sint 65; U. S. +4 AL

~ Title 45, ¢. 2, §51.°

. — **LyaBIniry oF —_— —_— BY Ramacap, IN -

_ . IvversvaTE ‘on Foreign CoMMERCE, FOR Insprms T0

ok EMPLOYEES From NEGLIGENCE. Every commbn car. -

rier by railroad while engaging in commerce between:

any of the several States or Territories, or between

any of the States and Territories, ‘or between the

-Distrie..of Columbia and any of-the States or Tet-

ritories,.or between the District of Columbia or any _.

of the States, or Territories and any foreign nation:

or. nations, shall be liable in damages to any person

; suffering injury while he is employed by such car-

rier tn such commerce, or, in case of the death of

such employee, to his ‘or her personal representative,

- for the benefit of the surviving widow’ or husband and ©

_ children: of such employeé; and; if none, then of —

such employee’s parents; and, if none, then of the

. hext of kin dependent upon such employee, for such

injury or death resulting in whole,or in part from

the negligence of any of the officers, agents, or em- °

. ployees of such carrier, or by-reason of any defect

or. insnfficiency, due to its negligence, in its cars,

engines, appliances, machinery, track, roadbed,

works, boats, wharves, or other equipment.’’ (italics

ours). ;

s

*:

f

’. APPENDIX B

Act of June 7, 1924, c. 355, §2, 43 Stat. 659, 45. U. S.

C. A §28, reads as. follows :, ,

“Tt shall be unlawful for: any carrier to use or

_ permit to be used.on its line any locomotive unless

‘said locomotive, its boiler, tender, and all parts and

a appurtenances thereof are in proper. condition dad

'* gafe.to operate in the service to which the same are |

put, | that the same may be employed in the. active S

service of such carrier without unnecessary peril to. °

. life or limb, and, unless said locomotive, its boiler,

tender, and all parts and appurtenances thereof have

been inspected from time to time in accordance with

the provisions of sections 28, 29, 30, and 32 andare

able to withstand such test or tests as may_be

prescribed in the rules and regulations aad

provided for.’’ (italies ours). . g

(A4307)