In an action based on the Employers' Liability Act, the trial
court properly submitted to the jury for its determination whether,
on the facts shown in regard to movement of cars coming from
without the state, the plaintiff was or was not engaged in
interstate commerce, and
Page 239 U. S. 51
properly refused to charge that he was not so engaged, and
therefor could not recover.
A writ of error to review such a judgment is so frivolous as not
to need further argument, and a motion to affirm must be granted
under § 5 of Rule 6.
224 F. 1021 affirmed.
The facts, which involve the duty of this Court in the case of a
frivolous appeal in a case under the Employers' Liability Act, are
stated in the opinion.
Memorandum opinion by MR. JUSTICE McREYNOLDS, by direction of
the court:
The question presented upon this writ of error is "so frivolous
as not to need further argument," and the motion to affirm the
judgment below must be granted. (Rule 6, § 5.)
Basing his claim upon the Employers' Liability Act of April 22,
1908, c. 149, 35 Stat. 65, Marion Donat began the original action
in the United States District Court for Indiana against the
Pennsylvania Company, a carrier by railroad, to recover damages for
personal injuries alleged to have been suffered by him while
employed as a yard conductor. The trial court refused a request to
charge that he was not engaged in interstate commerce when the
accident occurred, and therefore could not recover.
Page 239 U. S. 52
This refusal is the sole ground upon which error is now
asserted.
Two loaded coal cars coming from without the state were received
in the carrier's yard at Fort Wayne, Indiana. They were destined to
Olds' private switch track connecting with the yard, and, acting
under instructions, Donat commenced the switching movement
requisite to place them thereon. There was evidence tending to show
that, in order to complete this movement, it became necessary to
uncouple the engine from the loaded cars and with it to remove two
empty ones from the private track. While engaged about the removal,
defendant in error was injured. The trial court submitted to the
jury for determination whether he was engaged in interstate
commerce at the time of the injury, and, in approving such action
(224 F. 1021), the circuit court of appeals was clearly right.
N.Y. Central & Hudson River R. Co. v. Carr,
238 U. S. 260,
238 U. S.
262-263.
Affirmed.