Larkin v. New York, New Haven & Hartford Railroad , 232 N.Y.S. 363 ( 1928 )

Proskauer, J.

The plaintiff was employed by the defendant railroads to sort baggage and transport it from a baggage room in the Grand Central Station to baggage cars. In the discharge of his duties he used a baggage truck. Injured because of certain defects in the truck, he brought this action under the provision of the Federal Employers’ Liability Act to recover damages. The complaint has been dismissed upon the sole ground that the plaintiff was not at the time of the accident engaged in interstate commerce.

Plaintiff testified that he had been instructed to sort out certain baggage consisting both of trunks and theatrical scenery, then to transport the scenery to a baggage car, and. then to return and deliver to a baggage car the remainder of the baggage. He had placed the scenery upon the baggage car and was returning for the trunks at the time the accident occurred. The record does not disclose whether the shipment of scenery was interstate or intrastate. The plaintiff tendered evidence, however, of the destination of the remainder of the baggage, evidently intending to prove that it was consigned for interstate shipment. This proof was rejected by the trial court over the exception of the plaintiff.

The precise question raised by this appeal is whether the plaintiff’s employment at the time he was injured could be given an interstate character by reason of the fact that the trunks for which he was returning were to be shipped to destinations outside of the State. The situation here disclosed is essentially different from the one before the court in Illinois Central R. R. Co. v. Behrens (233 U. S. 473). There the employee was killed while moving cars all loaded with intrastate freight; he had no instructions to perform ' any other service thereafter; there was a general expectation that after he had completed his work upon the particular car on which he was killed, he was to gather up several other cars “as a step or link in their transportation to various destinations within and without the State.” He was thus engaged upon a number of separate and independent tasks, and Mr. Justice Van Devanter writes: “ That he was expected, upon the completion of that task, 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 of the injury.”

Similarly, in Erie Railroad Co. v. Welsh (242 U. S. 303), the employee, engaged in intrastate labor, was injured while he was attempting to alight from a railroad train to report for further orders. He had received no such orders. It was proved that the orders he would have received would have taken him into the field of interstate commerce, but it was held that he could not rely upon the provisions of the Employers’ Liability Act because the particular task upon which he was engaged when injured was entirely separate and distinct from the interstate task to which he would have been subsequently assigned. Mr. Justice Pitney writes: “ By the terms of the Employers’ Liability Act the true test is the nature of the work being done at the time of the injury, and the mere expectation that plaintiff would presently be called upon to perform a task in interstate commerce is not sufficient to bring the case within the act.”

The true test, in the language of Mr. Justice Pitney, is “ whether the series of acts that he had last performed was properly to be regarded as a succession of separate tasks or as a single and indivisible task.”

Application of that test differentiates the case at bar from these authorities relied upon by the respondent.

The plaintiff here had one task to perform. He was to sort the baggage and to load it upon cars; he received one instruction to perform that one task. I do not hold that the express instruction alone is the criterion. The instruction is evidence of the entirety of the task. Factually he was engaged in the performance of that one task when he started upon his return trip to the baggage room after the delivery of the scenery. Assuming, as we must upon this appeal, that the trunks for which he was returning were to be transported outside of the State, he was in fact engaged upon an interstate task from the moment he began his work and certainly at the time that he was returning to the baggage room for these interstate shipments. The plaintiff’s task of sorting interstate and intrastate baggage and transporting it from the baggage room imposed upon him duties which cannot fairly be regarded “ as a succession of separate tasks.” (N. Y. Central & H. R. R. R. Co. v. Carr, 238 U. S. 260; Carberry v. D., L. & W. R. R. Co., 93 N. J. Law, 414; 108 Atl. 364.) It was error, therefore, to exclude evidence as to the destination of the trunks.

The judgments appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

McAvoy and O’Malley, JJ., concur; Dowling, P. J., and Merrell, J., dissent.