Wilken v. New York Centeal Railroad

North, C. J. I am unable to concur in the opinion of Mr. Justice Edward M. Sharpe conditionally affirming the judgment entered in the trial court because, it appears to me, the record discloses reversible error. As a ground of recovery plaintiff claimed that one of defendant’s cars was equipped with a defective coupler and that this was the proximate cause of his injury. This question was submitted to the jury. The trial court charged: “In other words if you are convinced from the evidence by a preponderance of evidence that this *161 first and second cnt of cars came together as the plaintiff claims they came together and they refused to couple automatically, then I charge you as a matter of law that the defendant railroad company was negligent because this statute makes it the absolute duty of the railroad company to have those cars equipped with couplers which will couple automatically. ’ ’ The only testimony in the record which tends to sustain plaintiff’s claim that the coupler on the car in question was out of repair or in any way defective is that on this one particular occasion when the cars were shunted together the automatic coupler failed to work. At most this circumstance was only some evidence which in the light of the other facts disclosed might be considered by a jury in determining as a question of fact whether the coupling device was defective or out of repair. St. Louis S. R. Co. of Texas v. Bounds (Tex. Civ. App.), 244 S. W. 1099; same case (266 S. W. 171); Meisenhelder v. Byram, 182 Minn. 615 (233 N. W. 849). It did not justify the trial court in charging “as a matter of law” that the defendant was negligent in having failed to keep the car “equipped with couplers which will couple automatically.” ‘ ‘ The giving of an instruction which has the effect of stating to the jury that the mere failure of the device to operate is conclusive evidence of a violation of the act does not find authority in any of the cases.” Devaney v. Railway Co., 219 Cal. 487, 494 (27 Pac. [2d] 635). Notwithstanding the court also stated to the jury that if they found as a fact that the coupler failed to work, the jury then had a right “to infer from that fact alone that that coupler was not such a *162 coupler as the statute required” (thus making it an issue of fact), the instruction first above quoted constituted prejudicial error. Appellant further claims the court erred in failing to submit to the jury as an issue of fact whether or not the plaintiff was engaged in interstate transportation at the time of the injury. Instead of submitting the issue as one of fact, the trial court assumed as a matter of law that plaintiff at the time of his injury was engaged in interstate commerce. We quote from appellant’s reply brief: “Whether or not plaintiff was engaged in interstate commerce should have been submitted to the jury. While it may be true that the work Wilken was engaged in before he began to move the cars was so closely related to interstate commerce as to be a part thereof, it was still a question for the jury whether or not he was still engaged in interstate commerce when he ceased working upon the track and assisted in moving cars which blocked the view of Elm street.” Plaintiff’s right of recovery, if any, is asserted solely as being a right under the Federal employers’ liability act. See title 45 USCÁ. Section 51 provides that the act applies to carriers engaged in interstate commerce and renders them liable in damages to “any person suffering injury while he is employed by such carrier in such commerce.” “In deciding cases under the Federal employers’ liability act the jurisdiction of this court is the same as the jurisdiction of the Supreme Court of the United States (Chicago, M. & St. P. R. Co. v. Coogan, 271 U. S. 472 [46 Sup. Ct. 564]; Baltimore & Ohio Southwestern R. Co. v. Burtch, 263 U. S. 540 [44 Sup. Ct. 165]; Atlantic Coast Line R. Co. v. Burnette, 239 U. S. 199 [36 Sup. Ct. 75]). In determining the *163 liability the question, is not what the employee had been doing or what he expected to do, but what he was doing at the time he was injured (Minneapolis & St. L. R. Co. v. Winters, 242 U. S. 353 [37 Sup. Ct. 170, Ann. Cas. 1918B, 54]; New York C. & H. R. R. Co. v. Carr, 238 U. S. 260 [35 Sup. Ct. 780]; Delaware, L. & W. R. Co. v. Yurkonis, 238 U. S. 439 [35 Sup. Ct. 902]). No recovery can be had unless the employee was, at the time of his injury engaged in interstate transportation or in work so closely related thereto as to be practically a part of it (Illinois Central R. Co. v. Peery, 242 U. S. 292 [37 Sup. Ct. 122]; Erie R. Co. v. Welsh, 242 U. S. 303 [37 Sup. Ct. 116]; Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177 [36 Sup. Ct. 517]; Shanks v. Railway Co., 239 U. S. 556 [36 Sup. Ct. 188, L. R. A. 1916C, 797]). Whether or not an employee is engaged in interstate commerce at the time of his injury depends upon the facts of the particular case. He may be so engaged at one moment and a few minutes later he may not be so engaged.” Spencer v. Railway Co., 336 Ill. 560 (168 N. E. 686). We have held that a railroad switchman while engaged in a switching operation and moving cars not yet routed or designated for use in interstate commerce was not entitled to maintain an action under the Federal employers’ liability act (45 USCA, § 51 et seq.); and also that the burden of proving that, at the time of the accident, he was employed in or incident to interstate commerce was upon the injured employee. Rogers v. Railway Co., 246 Mich. 399. We are not in accord with appellee’s contention “that the undisputed facts show the plaintiff” was engag-ed in interstate commerce. Under the record in the instant case it was error for the trial court to refuse to submit to the jury as an issue of fact the question of whether or not plaintiff *164 at the time he was injured was engaged in interstate commerce. A specific request to so charge does not appear to have been made by appellant. Therefore the court’s failure to charge the jury in this particular might well be held not to be a ground for reversal. Court Rule No. 37, § 9 (1933); Eger v. Helmar, 272 Mich. 513. .But the case must be reversed for other reasons and the point raised by this assignment of error is considered because of its importance in a new trial. Other assignments of error considered in appellant’s brief are of such a character that they are not likely to occur in a subsequent trial. On that account we forego discussion. Judgment is reversed, with costs to appellant. New trial ordered. Fead, Wiest, Btjtzel, Potter, and Tot, JJ., concurred with North, C. J.