# Petitioners Brief — New York, NH & HR Co. v. Bezue > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0111%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1932 - **Citation:** 284 U.S. 415 ## Text ‘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Argument Point A. The particular service performed by respondent at the time of his injury was + repair of a locomotive withdrawn from trans- portation so that neither the instrumentality nor the character of the’work c¢ould be inter- ME | Chicago & North Western Ry.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 . 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0111%3A3. Public record. Not legal advice.