
    RUPPELL v. NEW YORK CENT. R. CO.
    (Supreme Court, Appellate Division, Second Department.
    March 17, 1916.)
    1. Commerce <§=>27—-“Interstate Commerce”—-Injuries to Servant—Federal Employers’ Liability Act.
    A switchman employed in the yards of an interstate carrier, who at the time of his death was making up a train belonging to another company and to be run over the other company’s track in interstate commerce, was employed by the former company in interstate commerce, within the federal Employers’ liability Act (Act April 22, 1908, c. 149, 35 Slat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]).
    [Ed. Note.-—For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. <©=>27.
    For other definitions, see Words and Phrases, First and Second Series, • Interstate Commerce.]
    <®q^3For other cases see same topic & KBY-NUMBBB in all Key-Numbered Digests & Indexes
    
      2. Negligence <@=*101—Excessive Damages—Switchman—Comparative Negligence.
    A verdict in an action under the federal Employers’ Liability Act for $12,000 for the death of a switchman, where the switchman was himself negligent, but the circumstances might fairly lead to diverse conclusions as to< the proportionate degree of negligence of the switchman and the yard conductor, will not be set aside.
    [Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164, 167; Dec. Dig. <@=*101.]
    <@zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    Appeal from Trial Term, Westchester County.
    Action by Anna Ruppell, as administratrix of the estate of Joseph Ruppell, Jr., deceased, against the New York Central Railroad Company. Judgment for the plaintiff, and defendant appeals. Affirmed.
    Argued before JENKS, P. J., and THOMAS, STAPLETON, RICH, and PUTNAM, JJ.
    John F. Brennan, of Yonkers, for appellant.
    Martin T. Manton, of Brooklyn, for 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 m 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 be run over its lines. They were passenger coaches to be run by the New York, New Haven & 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 employés 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 ñioving 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, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159.

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 o-f neglect, as between the omissions by the deceased and the faults by the yard conductor.

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