Opinion
June, 1918.
Judgment and order reversed and new trial granted, costs to abide the event, on authority of Minneapolis St. Louis R.R. Co. v. Winters ( 242 U.S. 353). Jenks, P.J., Blackmar and Kelly, JJ., concurred; Putnam, J., read for affirmance, with whom Thomas, J., concurred.
The two agreed statements are shown side by side:
Minneapolis St. Louis R.R. Co Case at bar Winters 242 U.S. 353 356
. . v. (, ). "The defendant will concede, for "The plaintiff was making repairs the purposes of this trial only, that upon an engine. This engine `had on the day before this accident the been used in the hauling of freight locomotive, 0101, which figured in trains over defendant's line * * * the accident, was withdrawn from which freight trains hauled both mixed commerce at the end of the intrastate and interstate commerce, day's work, on the day before the and * * * it was so used after accident, and sent to the yard for the plaintiff's injury.' The last repairs; that, on the day following time before the injury on which the the accident, it was, some time engine was used was on October 18, during the day, sent back into when it pulled a freight train into mixed commerce, but the defendant Marshalltown, and it was used does not concede that the first movement again on October 21, after the accident, after the accident was one of to pull a freight train out interstate or mixed commerce. The from the same place." Court: I suppose, when you say `mixed commerce,' you mean both interstate and intrastate? [Counsel for defendant]: Yes." Defendant's line crosses several State boundaries. Except perhaps the case of its switching engines, its locomotives are subjected to a dual service — interstate and intrastate. In the Winters case the prior use went back two days, leaving an unexplained gap in the relation of its service in the decisive period immediately before the locomotive reached the repair shop. Here the mixed service lasted up to the night before it was withdrawn for repairs, and that same dual service was resumed the next day after the accident. Defendant was as much required to repair this motor as if it had been wholly in interstate service. ( Chicago, K. S. Ry. Co. v. Kindlesparker, 234 Fed. Rep. 1.) Defendant did not ask to go to the jury on any matter of fact as to such employment. Here the motor was withdrawn from mixed commerce for a day's repair, leaving its character as an instrumentality of interstate commerce without the doubt as to prior service raised by the omissions in the stipulated facts of the Winters case. Hence I vote to affirm. Thomas, J., concurred.