(163 App. Div. 466)

#### NORTON v. ERIE R. CO.

(No. 216-69.)

(Supreme Court, Appellate Division, Fourth Department.

July 7, 1914.)

1. Commerce (§ 27*)—Federal Employers’ Liability Act—Applicability.

A yard switchman sustaining fatal injuries while assisting in moving freight cars left in the yard by a fast through freight was not within the protection of the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, as amended by Act April 5, 1910, e. 143, 36 Stat. 291 [U. S. Comp. St. Supp. 1911, p. 1324]), where the cars during the trip did not pass out of the state and contained no freight for interstate commerce, though the railroad company maintained railroads extending through several states.

[Ed. Note.—For other eases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]

2. Appeal and Error (§ 1175*)—Disposition of Case on Appeal.

Where, in an action for the death of a railroad employs, the complaint was broad enough to establish a case under the federal Employers’ *770Liability Act or the law of the state, and the evidence failed to establish a case under either law, and no prejudicial error has been pointed out, and every ground for recovery was considered by the trial court, the court on appeal from a judgment for plaintiff will not order a new trial but will, as authorized by Code Civ. Proc. § 1317, dismiss the complaint.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.*]

Appeal from Trial Term, Steuben County.

Action by Gertrude I. Norton, as administratrix of Shadrach Norton, deceased, against the Erie Railroad Company. Erom a judgment for plaintiff and from an order denying a new trial, defendant appeals.

Reversed, and complaint dismissed.

Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.

F. A. Robbins, of Rochester, for appellant.

James O. Sebring, of Corning, for respondent.

*

For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

KRUSE, P. J.

The plaintiff’s intestate, a yard switchman in the defendant’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 baggage-' man, receiving injuries which resulted in his death. The case was submitted under the federal Employers' Liability Act (April 22, 1908, c. 149, 35 Stat. 65, as amended by Act April 5, 1910, c. 143, 36 Stat. 291 [U. S. Comp. St. Supp. 1911, p. 1324]).

At the close of the evidence the trial court held that the plaintiff had failed to make out a case either 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.

[1] The defendant’s railroad extends through several states. Freight trains coming into the Hornell 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 a 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 *771Court in the case of Illinois Central R. R. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed.-(decided April 27, 1914), where it was held under similar circumstances that the case was not within .the federal Employers’ Liability Act.

[2] 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 evidence fails to make out a case under either the federal statutes 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 or* dered, but that the complaint should be dismissed, as may be done under the provisions of section 1317 of the Code of Civil Procedure. ,

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