John R. Parker, Jr. v. The Long Island Rail Road Company

J. JOSEPH SMITH, Circuit Judges.

John R. Parker, Jr., an employee of the Long Island Railroad Company, was injured in a fall on stairs at a passenger station of the railroad while on his way home from work and- brought suit under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., in the United States District Court for the Eastern District of New York. The jury, under instructions by Chief Judge Mishler, found that the injury occurred in the course of employment, was due to defendant’s negligence, that plaintiff was negligent to the extent of 15% and was damaged in the amount of $20,000 and returned a verdict for plaintiff in the amount of $17,000. From judgment on the verdict and from denial of motions to set aside and for directed verdict defendant railroad appeals. We find no error and affirm the judgment.

Parker, a track maintenance crew apprentice foreman in the employ of the Long Island Railroad Company, according to evidence which the jury could have credited, left a railroad tower of his employer, his normal place of reporting, at Hicksville, early on a summer evening after completing reports required in his employment. He walked some 2,000 feet on a public street on or along the railroad right of way to a passenger station maintained by the railroad, to take a train to his home, and was injured in a fall on a station stairway due to inadequate lighting. Parker was provided by the railroad with a pass which he was permitted to use not only to travel in connection with his track maintenance work, but also .to commute to and from his home in Brooklyn, some 40 miles from the Hicksville tower. The court held that the question of employment at the time of the injury was for the jury and that the jury might consider the free pass, that the accident was on railroad property, and the evidence as to whether the railroad was the only practical way to travel, in determining whether the travel home was related to employment.

While Chief Judge Mishler arrived at this ruling only after expressing considerable doubt, we are of the opinion that he reached the correct conclusion. In these F.E.L.A. cases and related Jones Act cases, the role of the jury is as important and determinative as in any field of tort law. See Baker v. Texas & Pacific Ry., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756 (1959); Rogers v. Missouri Pacific R.R., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, *101577 S.Ct. 459, 1 L.Ed.2d 515 (1957); Gallick v. Baltimore & O. R.R., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963); Powers v. New York Cent. R.R., 251 F.2d 813, 816, 76 A.L.R.2d 1207 (2d Cir. 1958)

Ordinarily travel to and from work is not considered within the time of employment under this Act or under state Workmen’s Compensation acts.1 However, whether a train trip to the employee’s home would be considered in the course of employment if it was unreasonable to expect him to travel by other means was left open in Young v. New York, N. H. & H. R.R., 74 F.2d 251, 253 (2d Cir. 1934). Here, the jury could find that the employee was an acting foreman in track maintenance, subject to call in emergencies, and lived at such’a distance from the tower where he usually was required to report that it was not economically feasible for him to continue the employment if he was not furnished the free railroad travel.

It is argued that time traveling home was not compensated for, and hence not time when Parker was employed. This is indeed a factor which may be considered, but the argument is somewhat weakened by the fact, that Parker was not compensated either for the time making out the reports in the tower, which, if performed, was concededly in the course of employment.

The jury could have found that at Parker’s pay rate, $128 a week, and travel to and from his home of 80 miles a day, it would be unreasonable to expect him to furnish his own transportation. This is not to say that ordinarily employer-paid transportation between home and work is in the course of employment, but where, as here, the employer has an interest in availability of the man for emergencies, the jury was not necessarily barred from finding the travel to be in the course of employment. We cannot say that a trier could not with reason conclude that the travel was so essential to the master’s work as to be considered within the course of employment.

Judgment affirmed.

. Sassaman v. Pennsylvania R. R., 144 F. 2d 950 (3 Cir. 1944); Metropolitan Coal Co. v. Johnson, 265 F.2d 173 (1 Cir. 1959); Quirk v. New York, C. & St. L. R. R., 189 F.2d 97 (7 Cir.), cert. denied, 342 U.S. 871, 72 S.Ct. 105, 96 L.Ed. 655 (1951); Tallon v. Interborough Rapid Transit Co., 232 N.Y. 410, 134 N.E. 327, 21 A.L.R. 1218 (1922); Kowalek v. New York Consolidated R. R., 229 N.Y. 489, 128 N.E. 888 (1920).