Appeal from the District Court of the United States for the District of New Jersey; Guy L. Fake, Judge.
Before BIGGS, MARIS, JONES, GOODRICH and McLAUGHLIN, Circuit Judges.
The plaintiff, an employee of the defendant company, brought suit in the District Court for the District of New Jersey to recover damages for injuries sustained by him upon alighting from a injuries sustained by of the defendant company while he was on his way home after having discharged, for the day, the duties of his employment.
The complaint ascribed negligence on the part of the defendant as the cause of the plaintiff's injuries. Generally stated, the alleged negligence consisted of the defendant's failure to maintain a station platform, at the situs of the injury to the plaintiff, in a reasonably safe condition. The complaint lays federal jurisdiction of the controversy lays federal jurisdiction of the controversy upon the diversity of the citizenship of the parties which the trial court found accordingly. The case was tried to the court below without a jury. The trial judge made no conclusion as to any right of action in the plaintiff under the Federal Employers' Liability Act, 35 Stat. 65, c. 149, 45 U.S.C.A.§ 51, but did find that the plaintiff was not functioning within the scope of his employment when injured. The trial court also found that the defendant's negligence in the particular alleged was the proximate cause of the plaintiff's injuries, that the plaintiff was free from contributory negligence and that his relationship to the defendant at the time of his injury was that of a passenger to whom the defendant owed reasonable care. The trial court thereupon entered judgment for the plaintiff on the basis of his common law right of action for negligence and the defendant took the pending appeal.
Save for an averment that at the time of his injury the plaintiff was engaged in interstate commerce, the complaint is silent as to any right of action in the plaintiff under the Federal Employers' Liability Act. Nor was the case disposed of upon that basis by the court below.However, the plaintiff as appellee now urges upon us the existence of such a right, under the facts of the case, as a ground for sustaining the judgment in his favor. As the right afforded by the Federal Employers' Liability Act, when applicable, is exclusive of all other remedies for injuries to employees,*fn1 it becomes necessary to determine in limine whether the evidence adduced at trial made out a case cognizable under the Act. We, therefore, turn immediately to a consideration of that question.
The plaintiff was employed as a train dispatcher by the defendant company in its terminal offices in Jersey City, New Jersey. His home was in Newark, New Jersey, some nine miles distant from the place of his employment. The facts disclose, and it is undisputed, that the customary duties of the plaintiff's employment were in furtherance of interstate commerce conducted by the defendant company as a common carrier by rail. On August 8, 1939, the plaintiff, having completed his work for the day a few minutes before three o'clock in the afternoon, left his place of employment in the defendant's Jersey City offices and, after descending to the station below, there boarded one of the defendant's passenger trains at 3:04 that afternoon, as was his custom, to return to his home in Newark. The train itself was in intrastate commerce running between Jersey City and South Amboy, New Jersey. When the train arrived at the defendant's South Street Station in Newark, the place of the plaintiff's intended departure, it was so brought to a stop that the car in which the plaintiff was riding, toward the rear of the train, was near the end of the platform. The plaintiff was thus required to alight at a place on the platform which he had never before traversed. The platform, which was of brick surface, was in a bad state of repair where the plaintiff alighted, there being a depression in the platform, immediately below the car steps which the plaintiff descended, about a foot and a half in diameter and an inch and a half to two inches in depth. The depression was not readily discernible by one looking down on it from above. It caused the plaintiff to lose his balance and fall upon stepping into it. Thereby, he suffered the injuries, as to which there is no serious dispute, for which he brought his suit to recover damages.
The question of the plaintiff's right under the Federal Act is to be determined according to the existing law at the time of his injury which occurred shortly prior to the 1939 amendment, 53 Stat. 1404, 45 U.S.C.A. §§ 51, 54, 56, 60.He can therefore maintain a right of action under the Act, as it existed at the time of the occurrence in question, only if the defendant was then engaged as a common carrier in interstate commerce and he was employed by the carrier in such commerce.*fn2 This, we think the evidence fails to establish. The trial court found, and the evidence well justifies the finding, that the plaintiff was not functioning within the scope of his employment at the time he sustained his injuries. In fact, plaintiff's counsel at trial stipulated of record that "to travel on the train [from Jersey City to Newark] was not within the scope of his duty" and "that what he was doing [i.e., travelling on the defendant's train], he was doing voluntarily * * * ." (Applts.App.pp. 36a, 37a). In any event, it is beyond dispute that, at the time of his injury, the plaintiff was not in the performance of the duties of his employment which he had already completed for the day in Jersey City.
It seems clear from the facts which we have recited that the plaintiff failed to show that both he and his employer were engaged in interstate commerce at the time of the infliction of his injuries. It would follow, therefore, that a case under the Federal Employers' Liability Act, prior to its amendment in 1939, is not made out by the record before us. North Carolina R. Co. v. Zachary, 232 U.S. 248, 256, 34 S. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159.
But, notwithstanding his counsel's formal admissions at trial, as above quoted, the plaintiff now argues that, when injured at Newark, he was still upon the defendant's premises consequent upon and incident to his taking leave of his place of employment in order to return home and that therefore his status as an employee, engaged in his employer's interstate commerce, still endured so as to entitle him to a right of action under the Federal Employers' Liability Act. Cf. Erie R. Co. v. Winfield, 244 U.S. 170, 37 S. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662; Cudahy Packing Company v. Parramore, 263 U.S. 418, 44 S. Ct. 153, 68 L. Ed. 366, 30 A.L.R. 532; Lukon v. Pennsylvania R. Co., 3 Cir., 131 F.2d 327.
We believe it will be found in the cases just cited as well as generally that, in order for an injured employee to be able to claim a right of action under the Federal Employers' Liability Act, it must be made to appear that his injuries were sustained either upon the premises where he normally performed the duties of his employment or upon premises so closely adjacent thereto as to be a part of the working premises in the sense that the employee was required to traverse them in going to or upon leaving his work. In other words, the employee's presence upon the premises where he receives his injuries must have been a necessary incident to the discharge of the duties of his employment.Thus, in the Winfield case, supra, 244 L. Ed. at page 173, 37 S. Ct. at page 557, 61 L. Ed. 1057, Ann. Cas. 1918B, 662, the Supreme Court said that "In leaving the carrier's yard at the close of his day's work the deceased was but discharging a duty of his employment." In the parramore case, 263 U.S. at page 421, 44 S. Ct. at page 153, 68 L. Ed. 366, 30 A.L.R. 532, the place of the employee's injury was "The only practicable way of ingress and egress for employees * * * ." In the Lukon case, the employee, a section hand, was killed after his work for the day was over but while he was walking toward his home along the right of way upon which he customarily worked. In Bountiful Brick Company v. Giles, 276 U.S. 154, 48 S. Ct. 221, 72 L. Ed. 507, 66 A.L.R. 1402, where the Utah Workmen's Compensation Act was involved, the Supreme Court gave pointed expression to the crucial situation determinative of the commencement or termination of the employee relationship prior to the employee's entering the actual place of his employment. It was there said (276 U.S. at page 158, 48 S. Ct. at page 222) that: "Probably, as a general rule, employment may be said to begin when the employee reaches the entrance to the employer's premises where the work is to be done; but it is clear that in some cases the rule extends to include adjacent premises used by the employee as a means of ingress and egress with the express or implied consent of the employer." Of course, the rule as to when the employment ends could be no different as the use of the word "egress" in the above quotation envisions.
In short, the condition which makes possible a claim for injuries suffered as in the course of employment but which are actually received on premises away from the employee's place of employment is the fact that the employee must, of necessity, traverse such other premises in order to reach or depart from the place of the discharge of his duties. In such circumstances, he is upon the adjacent or other premises, as a requisite of his employment, either with the knowledge and consent or the approval of his employer, at the least, legally implied from the knowable situation.
But, that is not this case. When the plaintiff descended from his place of employment to the defendant's Jersey City Station he was free to travel home or go elsewhere, as suited his desires, by whatever means of transportation he chose. He was not required to travel on the defendant's train. Much less, was he required to travel upon a particular train. There was absent, therefore, the employer compulsion as to the mode of travel to and from work which serves to attach or continue the employee relationship, away from the place employment, and makes an interstate employee's right of recovery for injury remediable under the Federal Employers' Liability Act.See Atlantic Coast Line R. Co. v. Williams, 5 Cir., 284 F. 262. Cf. Glover v. Union Pac. R. Co., D.C., 21 F.Supp. 618, appeal dismissed upon stipulation, 9 Cir., 97 F.2d 1015, 1016.
Nor do the cases of North Carolina R. Co. v. Zachary, 232 U.S. 248, 34 S. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159, Virginian R. Co. v. Early, 4 Cir., 130 F.2d 548, or Chicago, M., St. P. & P.R. Co. v. Kane, 9 Cir., 33 F.2d 866, lay down any different rule as to the extent of the premises which admit of the existence of an employee relationship before the employee has actually arrived at or after he has left his place of employment. In the Zachary case, during a temporary suspension of his work, the employee, a fireman, while attempting to cross certain tracks which intervened between his engine and his boarding house, a short distance away, was killed within the limits of the railroad yard where he worked. In the Early case, the employee was killed in the railroad yard on the premises upon which he worked while returning from a restaurant, on the same premises, maintained by the railroad for the use of its employees. And, in the Kane case, the employee, while passing, before his work for the day had begun, from his bunk on a side track to the toilet maintained by the railroad at a workmen's camp was killed by steam from an engine upon the tracks where he worked. The only case that we have been able to find which extends the employee relationship to premises beyond the place of the employee's employment or premises adjacent thereto is Hendricks v. New York, N.H. & H.R. Co., 251 N.Y. 297, 167 N.E. 449, a decision by the Court of Appeals of New York. While that case involves a construction of the Federal Employers' Liability Act, in the administration whereof state courts exercise concurrent jurisdiction (Second Employers' Liability Cases Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 56, 32 S. Ct. 169, 56 L. Ed. 327, 38 L.R.A., N.S., 44), and is therefore pertinent, the decision, which was by a divided court, extends, we believe, the employee relationship in interstate commerce beyond the limits set by the federal decisions to which we have referred.
We accordingly concede that the plaintiff was not acting within the scope of his employment at the time he received his injuries and that, consequently, he was not employed in interstate commerce at that time. It, therefore, follows that he does not have a right of action under the Federal Employers' Liability Act. Cf. Young v. New York, N.H. & H.R. Co., 2 Cir., 74 F.2d 251, and ...