
    Grace Knowles, as Administratrix, etc., of Charles E. Knowles, Deceased, Respondent, v. New York, New Haven and Hartford Railroad Company, Appellant.
    Second Department,
    November 13, 1914.
    Railroad — master and servant — negligence — action under Federal Employers’ Liability Act — burden of proof — evidence as 6o decedent’s employpient in interstate commerce.
    Where, in an action under the Federal Employers’ Liability Act to recover for the death' of plaintiff’s husband, who was killed while crossing the tracks in the defendant’s yard on his way to his work, which was to begin a few minutes thereafter, it appears that the decedent was regularly assigned to a switch locomotive engine used in the yard of the defendant, the plaintiff is bound to establish that either the exclusive use or the initial use of the locomotive was in interstate commerce.
    Appeal by the defendant, New York, New Haven and Hartford Eailroad 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 30th day of January, 1914, upon the verdict of a jury for $9,500, and also from an order entered in said clerk’s office on the 10th day of February, 1914, denying the defendant’s motion for a new trial made upon the minutes.
    
      J. W. Carpenter [Charles M. Sheafe, Jr., with him on the brief], for the appellant.
    
      Thomas J. O,Neill, for the respondent.
   Jenks, P. J.:

The plaintiff was bound to establish that the work doing by her intestate at the time he was killed was that of interstate commerce. (Illinois Cent. R. R. v. Behrens, 233 U. S. 473; Pedersen v. Del., Lack. & West. R. R., 229 id. 146; Shanks v. Delaware, L. & W. R. R. Co., 163 App. Div. 565.) As the intestate was killed while crossing the tracks in the defendant’s yard on his way to his work, which was to begin a few minutes thereafter, the case of the plaintiff is necessarily that her intestate was engaged in interstate commerce in the sense that the work which he was on his way to do was of that character. (See North Carolina R. R. Co. v. Zachary, 232 U. S. 248.) The intestate was assigned regularly to a switch locomotive engine used in the yard of the defendant. The proof shows that it was used indiscriminately in interstate and intrastate commerce within the meaning of. the decisions. Hence the plaintiff was bound to establish either that this switch locomotive was used exclusively during that shift, which began at midnight and ended at 8 A. m., in interstate commerce, or that it was thus used at the very outset of the shift. I think that she did not make out her case. The witness Regan, an employee of the defendant, called by the plaintiff, testifies without contradiction that there was no proof of any kind available that could show all of the uses of this switch engine in defendant’s work. It is true that the “ switching tissues,” which are record calls for certain work, indicate that this locomotive engine was used in interstate commerce during the shift, and perhaps do not indicate use for intrastate commerce during that time; but there is also proof that such switching tissues did not cover all of the ordinary uses of such an _ engine, but simply outside work — outside of the central yard proper. I have said already that the proof is that there is no record or proof available to show what other uses may have been made of this engine. And there is proof that the engine on such shift was used always to make up a certain regular local freight train. Even if the switching tissues indicate that this engine was used in interstate commerce during this shift, they, as I read them, do not permit the inference that such use was made at the beginning of the shift. Indeed, some of the tissue records seem to refer to a use made some hours after midnight. There is no presumption to aid the plaintiff, and as her proof as I read it does not warrant the conclusion that either the exclusive use or the initial use of this locomotive engine on this occasion was in interstate commerce, I think that there must be a new trial. I suggest that when such a question as the one now discussed is presented, it would be well for the learned court, in case the proof justifies a submission to the jury of the question of the character of the work, to direct the attention of the jury specifically to that issue.

I advise that the judgment and order be reversed and that a new trial be granted, costs to abide the event.

Carr, Rich, Stapleton and Putnam, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  