The plaintiff sues under the Federal Employers' Liability Act to recover damages for injuries resulting in death.
Joseph Pallocco was employed as a track laborer at the *Page 113 Manchester yard of the Lehigh Valley Railroad Company, an interstate carrier. On April 29, 1917, he was working at the west end of the yard, pulling up old ties and putting in new ones. At noon he had an hour to himself for lunch, which it was his habit to take at home. He left the scene of his work with his son, and walked along one of the tracks from the west end of the yard to its starting point at the east, a distance, it seems, of half a mile. An engine approaching without signal caught him between the track and a concrete tower, and injured him so badly that he died. The question is whether he was then engaged in interstate commerce. The ruling of the trial judge dismissing the complaint was affirmed at the Appellate Division by a divided court. An appeal to this court followed.
Pallocco was employed in interstate commerce while repairing the defendant's ties. We think his employment was not changed, at least as a matter of law, by his trip across the yard (Erie R.R.Co. v. Winfield, 244 U.S. 170, 173; Knowles v. N.Y., N.H. H.R.R. Co., 223 N.Y. 513). The argument is made that instead of walking upon a track, he should have gone between tracks, and thus avoided danger. Such considerations bear upon his contributory negligence, and thus, under the federal statute, upon the measure of recovery (Employers' Liability Act, § 1; 35 Stat. 65; Spokane Inland Empire R.R. v. Campbell,241 U.S. 497, 509). They do not show of themselves that there was an end of his employment. The journey across the yard would have been an incident of the service if it had been made with care. That being so, it did not cease to be such an incident when made without care. A different case would be here if the defendant had set aside a determinate path for the use of its employees, and either expressly or by implication had forbidden travel elsewhere. No such restrictions were imposed. The course to be followed *Page 114 was left to the unaided judgment of the men who were to follow it. This man, when he met his death, was traveling the route which he had traveled many times before. His son and other workmen had followed the same path. The right to choose is not destroyed by the unwisdom of the choice.
Some point is made, though more or less incidentally and doubtfully, that Pallocco was at fault if he kept within the yard at all. We are told that he could have cut across tracks and reached a neighboring highway. This is not shown except by the production of a map which is silent as to the nature and occupancy of the intervening spaces. The possibility may, however, be assumed, and the result will not be changed. Pallocco was not following a right of way of indefinite extension. He was moving across a yard of determinate dimensions, marked off by use and boundaries as a unit, as something single and entire. We cannot say that there was a duty to depart from this inclosure by the shortest line to the perimeter. Whether passage through the yard from its outermost extremity to its beginning was a privilege of the employee, attaching as a reasonable incident of his contract of employment, must be determined as an inference of fact in the light of all the circumstances. First in importance among these are the physical surroundings and the practice of the business.
Our ruling in Matter of McInerney v. Buffalo SusquehannaR.R. Corp. (225 N.Y. 130) is pressed upon as authority for a different conclusion. We do not so regard it. There the injured workman, a claimant under the Workmen's Compensation Act, was walking along a right of way. Close beside him was a highway which he could easily have reached and which he commonly traveled. The contour of the yard, the proximity of other avenues of access and egress, and the reasonable incidents of the service as indicated by the practice of the servant, were the features of that case which determined the *Page 115 decision. They separate it adequately from the case at hand.
The judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.
POUND, CRANE and ANDREWS, JJ., concur; HISCOCK, Ch. J., HOGAN and McLAUGHLIN, JJ., dissent.
Judgments reversed, etc.