On appeal from the Common Pleas Court of Hudson county.
For the appellants, Wall, Haight, Carey & Hartpence (William H. Carey, of counsel).
For the respondent, Archie Elkins.
Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
The opinion of the court was delivered by
LLOYD, J. The action in this case was brought against the New York Central Railroad Company and Charles Blaich
under the Federal Employers' Liability act. There was a verdict in favor of the plaintiff and the defendants appeal.
The fundamental question in the case is whether the accident from which the injuries arose and for which the suit was brought occurred in interstate commerce or intrastate commerce. At the time of the accident the plaintiff was employed in the roundhouse of the defendant railroad company at North Bergen, and while attempting to disconnect a drawbar of the tender of an engine was injured through, as the jury might have found, the negligence of the defendant Blaich, the foreman in charge of his work.
Respecting the nature of the service in which the engine was at the time engaged, the plaintiff's proofs tended to show that the engine in question had come from Selkirk, New York, on the morning of June 17th, 1928, and the plaintiff was instructed by his foreman Blaich to do certain work on or about it, the precise instructions being to "go over to engine No. 3842, going to Selkirk on fast freight, five-fifteen leaving the engine house; go over there, disconnect the drawbar, the tender from the engine." In making this disconnection, plaintiff was injured. The statements of Blaich were, under a prior ruling of the court, admitted as evidential against the defendant Blaich alone, and the jury was instructed to disregard them in so far as they affected the railroad company.
On these proofs a motion was made for nonsuit on the ground, among others, that neither the plaintiff nor the engine was at the time engaged in interstate transportation. This motion was denied and the defendant's proofs then established that the engine in question had been engaged in interstate commerce, that on the morning of June 17th it was brought into the roundhouse and remained out of service until July 11th, 1928, on which latter date, after a series of repairs had been made, it was given a trial run and on the same evening was assigned to Kingston, New York, on a work train. Subsequently it again went out on the Selkirk run.
The defendant's proofs also established without contradiction (other than might be implied in ...