Pennsylvania Co. v. Donat, 239 U.S. 50 (1915)

U.S. Supreme Court

Pennsylvania Co. v. Donat, 239 U.S. 50 (1915) Pennsylvania Co. v. Donat

No. 54

Motion to dismiss or affirm submitted October 18, 1915

Decided November 1, 1915

239 U.S. 50

ERROR TO THE COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Syllabus

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.