The opinion of the court was delivered by
Bergen, J.The plaintiff was the servant of the defendant, and at the time when he was injured, for which he brings tills suit, lie was engaged, under the direction of his superior officer, in placing a cover over the mechanism of a switch which he had just oiled. This switch connected two lines of track, one used for* freight and the other for passenger trains, for either interstate or intrastate commerce, according to the business necessities of the defendant, and while so engaged, plaintiff was struck and injured by a car which had been propelled with sufficient force to send it running alone, along the eastbound freight track. No warning was given the plaintiff, at least not in time to permit him to avoid the car.
The plaintiff in Ms declaration rests his action to recover upon the act of congress of the United States of America, entitled “An act relating to the liability of common carriers by railroad to their employes in certain cases,” and the supplements thereto and amendments thereof.
The plaintiff had judgment for $1,250, from which the defendant appeals for two reasons — first, that the action was not sustainable under the aforesaid act of congress, and therefore the trial court committed an error in refusing the motion of the defendant for a direction in its favor; second, that the defendant was not negligent, but the disposition which we have *340made of this ease does not require the consideration of the second reason.
We are unable to find any testimony in the cause which permits an inference to be drawn that the car which caused this injury was then in use, or in preparation for use, in interstate commerce, or that the plaintiff was then engaged in an occupation which had any relation to such commerce within the meaning of the federal act. The car which struck the plaintiff and caused the injuries upon which this action is based was not at the time being used for the purpose of transportation of freight, nor did it appear in tire case that the movement of the car had any immediate relation to the making up of a train for the purpose of interstate commerce. And so far as the occupation of the plaintiff is. disclosed by the testimony, he was simply repairing an instrument of commerce which “is used sometimes in interstate and sometimes in intrastate transportation,” and this we have held is not an engaging in interstate commerce. Pierson v. New York, Susquehanna and Western Railroad Co., 54 Vroom 661. The case under review is controlled by the case last cited, and therefore the defendant in this case was entitled to a direction in its favor, the refusal of which was an error requiring the reversal of this judgment. It is proper to add that the ruling made by the trial court, which is here held to be error, was applied before the determination of the case last cited, and the trial court, when called upon to rule, did not have advantage of the conclusion reached by this court in that case.
The judgment will be reversed and a new trial ordered.
For affirmance — None.
For reversal — The Chancellor, Chiee Justice, Garrison, Swaxzb, Trenohard, Parker, Bergen, Minturn, Kalisoh, Bogert, Vredenburgh, Congdon, Treact, JJ. 13.