
    Anna Ruppell, as Administratrix, etc., of Joseph Ruppell, Jr., Deceased, Respondent, v. The New York Central Railroad Company, Appellant.
    Second Department,
    March 17, 1916.
    Railroad — negligence — injury to brakeman by switching cars upon converging tracks — charge — negligence of yardmaster — when employees switching cars of another company engaged in interstate commerce.
    In an action against a railroad company brought by an employee to recover damages for personal injuries, the negligence of a yardmaster in permitting two switching trains to be simultaneously backed into the yard upon converging tracks at night may be left to the jury.
    In such action it was proper to charge that the deceased, who was at the front of a shunted car, being guilty of contributory negligence, the sole remaining issue was whether the greater weight of evidence established the negligence of the yardmaster.
    Where two railroads use a common switching yard in which the employees of one form a switching crew which is actually making up cars into a train, all of which are to go beyond the State line, they are - under the protection of the Federal act, being engaged in interstate commerce, even while not moving the cars of them immediate employer.
    Appeal by the defendant, The New York Central Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of May, 1915, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 21st day of May, 1915, denying defendant’s motion for a new trial made upon the minutes.
    This is an action brought under the Federal Employers’ Liability Act (35 IT. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143).
    
      
      John F. Brennan, for the appellant.
    . Martin T. Mantón, for the respondent.
   Putnam, J.:

The question of the neglect of Keefe, the yardmaster, in permitting two switching trains to be simultaneously backed into the yard upon converging tracks, at night, was fairly left to the jury. They were told that deceased at the front of the shunted car was guilty of contributory negligence, so that the sole remaining issue was whether the greater weight of the evidence established negligence in Keefe’s conduct. This was as favorable to defendant as it could ask. But the cars being made up into a train were not owned by defendant or to he run over its lines. They were passenger coaches to be run by the New York, New Haven and Hartford Railroad Company over its tracks to Springfield, Mass. It is, therefore, urged that although deceased (a brakeman on one of these cars) may have been employed in interstate commerce, he was not so employed by the defendant. Where, however, two railroads use a common switching yard in which the employees of one carrier form a switching crew which is actually making up cars into a train, all of which is to go beyond State lines, those engaged in such switching are under the protection of the Federal act even if they are not moving the cars of their immediate employer. In such case this use of its switching crews makes the employer engaged in interstate commerce. (North Carolina Railroad Co. v. Zachary, 232 U. S. 248.)

We would not be warranted in setting aside the verdict for $12,000. The circumstances might fairly lead to diverse conclusions as to the proportionate degrees of neglect, as between the omissions by the deceased and the faults by the yard conductor.

The judgment and order are, therefore, affirmed, with costs.

Present — Jenks, P. J., Thomas, Stapleton, Rich and Putnam, JJ.

Judgment and order unanimously affirmed, with costs.  