McAuliffe v. New York Central & Hudson River Railroad

Nor, in my judgment, would it be interstate commerce in any sense to haul a dead engine, which, I understand, belonged to the carrier, from one place on its railroad to another point in another state, especially when disconnected with the transportation of interstate freight. Suppose the ‘order had been to carry some railroad tools from Haverstraw to Weehawken. That would not be interstate commerce. The railroad company would hardly be in traffic with itself by transporting its property to or from different points on its road, or a division of it. In North Carolina R. R. Co. v. Zachary, 232 U. S. 248 , 259, 34 Sup. Ct. 305 , 309, 58 L. Ed. 591 , Ann. Cas. 1914C, 159, it was said that:

“The hauling of empty cars from one state to another is, in our opinion, interstate commerce within the meaning of the act.”

The defendant says that this utterance was dictum. However, I accept it as authority; but it does not apply to the present case. The locomotive and caboose and crew were not hauling empty cars from one state to another, nor were they returning from a trip after hauling empty or loaded cars between states, because after the_ outward trip was ended they were diverted to intrastate operation, and after such intervention were going back without transporting any objects of commerce from one state to another. They were carrying instrumentalities which had been and probably would be used in the future for interstate and intrastate transportation combined, or only for intra

“The facts shown in the certificate are these: The intestate was in the service of the railroad company as a member of a crew attached to a switch engine operated exclusively within the city of New Orleans. He was the fireman, and came to his death, while at his post of duty, through a head-on collision. The general work of the crew consisted in moving cars from one point to another within the city over the company’s tracks and other connecting tracks. Sometimes the cars were loaded, at other times empty, and at still other times some were loaded and others empty. When loaded, the freight in them was at times destined from within to without the state or vice versa, at other times toas moving only between points withm the state, and at still other times was of both classes. When the cars were empty the purpose was usually to take them where they were to be loaded, or away from where they had been unloaded. And oftentimes, following the movement of cars, loaded or empty, to a given point, other cars were gathered up and taken or started elsewhere. In short, the crew handled interstate and intrastate traffic indiscriminately, frequently moving both at once, and at times turning directly from one to the other. At the time of the collision the crew was moving several cars loaded with freight which was wholly intrastate, and upon completing that movement was to have gathered up and taken to other points several other cars as a step or link in their transportation to various destinations within and without the state. The question of law upon which the Circuit Court of Appeals desires instruction is whether, upon these facts, it can be said that the intestate at the time of his fatal injury was employed in interstate commerce within the meaning of the Employers’ Liability Act.”

After considering the power of Congress, the opinion continued:

“Passing from the question of power to that of its exercise, we find that the controlling provision in the act .of April 22, 1908, reads as follows: ‘That every common carrier by railroad while engaging in commerce between any of the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employé, to his or her personal representative, •:= * * for sucii injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.’ Giving to the words ‘suffering injury while he is employed hy such carrier in such commerce’ their natural meaning, as we think must be done, it is clear that Congress intended to confine its action to injuries occurring when the particular service in which the employé is engaged is a part of interstate commerce. The act was so construed in Pedersen v. Delaware, Lackawanna & Western Railroad Co., 229 U. S. 146 , 150, 152 [ 33 Sup. Ct. 648 , 649, 650, 57 L. Ed. 1125 , Ann. Cas. 1914C, 153], It was there said: ‘There can be no doubt that a right of recovery * * is suffered while the carrier is engaged in interstate commerce and while the employé is employed by the carrier in such commerce.’ Again: ‘The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?’ And a like view is shown in other cases (citing cases). Here, at the time of the fatal injury, the intestate was engaged in moving several cars, all loaded with intrastate freight, from one part of the city to another. That was not a service in interstate commerce, and so the injury and resulting death were not within the statute. That he was expected, upon the. completion of that taslo, to engage in another which would have been a part of interstate commerce, is immaterial under the statute, for by its terms the true test is the nature of the

work being done.at the time o£ the injury. The question is accordingly answered in the negative.”

The language is explicit; it isolates completely the service at the time of the injury, and ascertains whether then and there the plaintiff was employed in interstate commerce; it ignores past service; it puts from view further service, and asks what was the nature of the carrier service at the period of accident. What was done in that case is not what was done in this instance; but the rule for testing the application of the statute is made very clear.

[3] The state of New York created the defendant for the public purpose to which its property within this state is devoted. Taking presumably from the southern terminal of the railway persons and property in some large degree received over waters falling under the municipal law of New York, it carries them for a short distance through the state of New Jersey, and thence along its line, even, it may be, to the western border of the state of New York. The property within the latter state is protected by and is subject to its dominion. It becomes related to the federal government only by contacts with interstate commerce. This may be when and while its property proximately touches such commerce. Thus its railway tracks, continued from state to state, appropriated to both varieties of traffic, cannot be shifted momentarily from one use to the other, for the reason that segregation to varying purposes is practically impossible. But the equipment is ambulatory in the matter of location, and subject to vicissitudes in regard to things carried and their destinations. As property it pertains to the domicile of its owner, and is amenable to the policy of the state whose public agent its owner is. Therefore in the progress of national unification Congress may stretch its hand no farther than the federal Constitution permits. All else falls under the sway of the state. So, then, when the question arises whether the federal act applies, the burden is upon the person asserting it to show that the facts at the time of the happening abated the original and primary sovereignty of the state, and permitted the exceptional and limited power of the federal government to attach. In this action the plaintiff has failed to make such proof.

[4] Inasmuch as the learned trial justice left the question of contributory negligence of the plaintiff to the jury, at least in part, under the terms of the federal statute, the verdict cannot be sustained upon our holding that this was not within the federal act of 1908.

■ The judgment and order should be reversed, and a new trial granted ; costs to abide the event.

JENKS, P. J., and PUTNAM, J., concur. STAPLETON, J., votes to affirm, being of opinion that the evidence that the regular run of the plaintiff was between Weehawlcen, in the state of New Jersey, and Ravena, in the state of New York, and that at the time of the casualty the plaintiff’s train, consisting of an engine, tender, and caboose, and carrying a full crew, was moving from Ravena to Weehawken, to return with freight, warrants the inference that at the time of the casualty the defendant was employed in commerce between states