#### Gertrude I. Norton, as Administratrix, etc., of Shadrach Norton, Deceased, Respondent, *v.*Erie Railroad Company, Appellant.

(No. 1.)

Fourth Department,

July 7, 1914.

Railroad — negligence — death — interstate carrier — Federal Employers’ Liability Act — new trial.

Where in an action against an interstate carrier to recover for death, it appears that plaintiff’s intestate was a yard switchman; that he was killed while assisting in moving six freight ears which had been formed into a train at Buffalo and left at the yard, at no time during the trip having passed out of the State, and there is no proof that any of the cars contained freight coming from outside of the State, or that they were in use in interstate traffic in any way at the time of the accident, the proof being to the contrary, no cause of action under the Federal Employers’ Liability Act is made out.

Plaintiff having also failed to make a case either at common law or under the statutes of this State, and the record being full and complete and free from prejudicial error, and it appearing that every ground urged for a recovery against the defendant was considered by the trial court and is presented by the record, a judgment in plaintiff’s favor should be reversed and the complaint dismissed without the granting of a new trial, under section 1317 of the Code of Civil Procedure.

Appeal by the defendant, Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 11th day of September, 1913, upon the verdict of a jury for $5,500, and also from an order entered in said clerk’s office on the 26th day of September, 1913, denying defendant’s motion for a new trial made upon the minutes.

*F. A. Robbins,*for the appellant.

*James O. Sebring,*for the respondent.

Kruse, P. J.:

The plaintiff’s intestate, a yard switchman in the defend, ant’s employ, was riding on the side of a freight car in the defendant’s yards at Hornell, and was knocked off the car by a baggage truck which had been carelessly left between the tracks by a baggageman, receiving injuries which resulted in his death. The case was submitted under the Federal *467Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149, as aind. by 36 id. 291, chap. 143; U. S. Comp. Stat. Supp. 1911, pp. 1322, 1324).

At the close of the evidence the trial court held that the plaintiff had failed to make out a case at common law or under the statutes of this State. We think that ruling was correct, and we are also of the opinion that the plaintiff failed to make out a case under the Federal Employers’ Liability Act for the reason that although defendant was engaged in interstate commerce as well as intrastate commerce, it does not appear that the particular service in which plaintiff’s intestate was employed at the time he was injured was a part of such interstate commerce.

The defendant’s railroad extends through several States. Freight trains coming into the Homell yard are broken up and new trains formed; others pass through unbroken. The general work of the yard crew to which the deceased belonged was shifting and classifying cars and doing general switching work in the yard. Plaintiff’s intestate was injured at the time he was assisting in the work of moving six freight cars. Although the cars came in fast through freight, they were put into the train at Buffalo and left at Hornell, at no time during the trip passing out of the State. The train which brought them had proceeded on its journey several hours before the accident occurred. There is no proof that any of them contained freight coming from outside the State or that the cars were in use in interstate traffic in any way at the time of the accident. The proof is quite to the contrary.

Under these circumstances we are of the opinion that the disposition of this case is controlled by the decision of the Federal Supreme Court in the case of *Illinois Central R. R. Co.*v. *Behrens*(233 U. S. 473), where it was held under similar circumstances that the case was not within the Federal Employers’ Liability Act.

The only remaining question which needs to be considered is whether we should grant a new trial or dismiss the complaint. While the complaint itself is broad enough in its statement of facts to make out a case under the laws of our State, if the case is not within the Federal Employers’ Liability Act, the *468evidence fails to'make out a case under either the Federal statute or the State law. The case is made up by question and answer as is required by rule 34 of the General Rules of Practice in effect November 1, 1913, and the stipulation of the attorneys for the respective parties attached to the case is to the effect that it contains all the proceedings and all the evidence offered or received on the trial. No error prejudicial to the plaintiff has been pointed out and we have discovered none in the record. Every ground urged for recovery against the defendant seems to have been considered by the trial court and is presented by the record now before us. We are, therefore, of the opinion that a new trial should not be ordered, but that the complaint should be dismissed,' as may be done under the provisions of section 1317 of the Code of Civil Procedure (as amd. by Laws of 1912, chap. 380).

The judgment should be reversed and the complaint dismissed, with costs.

All concurred.

Judgment and order reversed and complaint dismissed, with costs, including costs of this appeal.