[239 U.S. 50, 51] Messrs. Frederic D. McKenney, Samuel O. Pickens, Fred E. Zollars, James H. Rose, and Elmer E. Leonard for plaintiff in error.
Messrs. Samuel Herrick, Rufus S. Day, R. B. Newcomb, James B. Harper, Otto E. Fuelber, Roscoe C. Skiles, Thomas J. Green, George M. Skiles, E. C. Chapman, and A. G. Newcomb for defendant in error.
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 ( 35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, 8657), 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 re- [239 U.S. 50, 52] cover. 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 Fed. 1021) the circuit court of appeals was clearly right. New York C. & H. R. R. Co. v. Carr, 238 U.S. 260, 262 , 263 S., 59 L. ed. 1298, 35 Sup. Ct. Rep. 780.