Camp v. Pennsylvania Railroad

Cochrane, P. J.: To sustain this judgment it must appear that the deceased at the time of his injury was engaged in interstate commerce. On April 27, 1917, three cars loaded with coal reached Canandaigua, N. Y., from Pennsylvania. The coal was consigned to the A.'N. Hollis Coal Company of the former place, which company has a private siding or switch connected with the defendant’s road. The loaded cars were placed on this siding to be unloaded by the consignee. April twenty-ninth two of the cars had been unloaded. The third car was in such a position on the siding that it could not be conveniently unloaded. This loaded car was between the two which had been unloaded. The yard' crew of which the deceased was conductor entered the siding with an engine for the purpose of readjusting the position of the loaded car. Incidental to that duty and according to custom it was the purpose of the crew to remove the empty cars from the siding and return them to the yard. While coupling the engine to the cars the deceased received his injury, due, as it is claimed, to defective automatic couplers, in violation of the provisions of the Federal Safety Appliance Act. (See 27 U. S. Stat. at Large, 531, § 2.) It was stipulated by the defendant that after delivery of coal “ it was the general practice and custom of the railroad to return them [the empty cars] as soon as practicable to the mines.” There is no evidence, however, that these two empty cars were under orders to be returned or that the crew was about to place them in a train for that purpose or that the work had any reference to their homeward journey. On the contrary, the only proper inference is that they were to be placed on the storage track or in some convenient place awaiting further orders. As stated, one of the three cars had not yet been unloaded, and, as a matter of fact, after the accident the two empty cars were left on the siding. In fact the stipulation is “ that following the unloading of these cars they were returned to the yard in Canandaigua.” Under the foregoing circumstances it seems clear that the work had reference merely to the readjustment of the position of the several cars on the siding of the consignee or in the yard of the defendant for their convenience and did not involve any interstate movement of the cars. If it be assumed that the primary purpose of the crew was to remove the empty cars from the siding, the [80] conclusion reached must be the same because the purpose of such removal was merely to return the cars to the yard of the defendant until they should be ordered elsewhere. In Pennsylvania Co. v. Donat (239 U. S. 50), cited by plaintiff, the accident occurred while the cars were being placed on the private switch track of the consignee. But they were just completing their journey and their delivery on the private track of the consignee was a part of the interstate movement which was not completed until delivery was made. Here, as we have seen, delivery was complete two days before the accident and two of the cars in the meantime had been unloaded. The burden of proof was on the plaintiff to establish that the deceased at the time of the accident was engaged in interstate commerce and this burden she has failed to meet. The judgment and order denying the motion for a new trial should be reversed and the complaint dismissed, with costs. The order denying plaintiff’s motion to correct the answer of the jury is affirmed, without costs. As to judgment and order, all concur, except Hinman, J., dissenting, with an opinion; Kiley, J., not sitting. Order denying plaintiff’s motion to correct answer of the jury unanimously affirmed, without costs; Kiley, J., not sitting.