Connors v. Delaware & Hudson Co.

Van Kirk, P. J. Defendant contemplated constructing a new crossover from its main line to a side track used in interstate commerce; this was to be part of the construction of a new yard. There had been no crossover where this one was to be installed. The construction was not yet begun when plaintiff received his injuries. He was moving ties from storage and placing them near the location of the proposed crossover. The action was tried before a jury. At the close of the evidence defendant moved for a dismissal of the complaint on the merits. This motion was retained pending the taking of a verdict. The jury rendered a verdict for plaintiff. The court then' set aside the verdict and granted the motion to dismiss. This appeal follows. The plaintiff when injured was not employed in interstate commerce, or in work so closely related thereto as to be a part thereof. His work was simply the placing of the ties in a convenient place for use in constructing the crossover; that is, placing them in temporary storage. That the crossover, when finished, was intended for use in interstate commerce does not bring his case within the Federal Employers’ Liability Act. (New York Central R. R. Co. v. White, 243 U. S. 188, 191; Chicago, Burlington & Q. R. R. Co. v. Harrington, 241 id. 177; Pedersen v. Delaware, L. & W. R. R. Co., 229 id. 146.) In the White Case (supra) the railroad company was engaged in the construction of a new station and track intended to be used when finished in interstate commerce. White was a night watchman employed in guarding the tools and materials intended to be used in the new construction. The court said: “ The test is, ‘ Was the employé at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it? ’ ” and held that decedent’s work bore no direct relation to interstate transportation and had to do solely with construction work, which is clearly distinguishable; citing the Pedersen Case (supra). In the Harrington Case (supra) coal had been brought into the railroad yards from another State and the cars which carried it were placed on storage tracks a few days before. Harrington was injured while removing the coal from these cars to the coal chutes where the coal would be convenient [383] for supplying locomotives to be used in interstate and intrastate traffic. The court said (at p. 180): “ This was nothing more than the putting of the coal supply in a convenient place from which it could be taken as required for use,” and, after stating “ the true test ” as above quoted from the White case, continues: “ Manifestly, there was no such close or direct relation to interstate transportation in the taking of the coal to the coal chutes.” We find no distinction in principle between these cases cited and the instant case. The order and judgment should be affirmed, with costs. Hinman and Crapser, JJ., concur; McNamee, J., dissents, with an opinion in which Hill, J., concurs.