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R. Co.

Stephens v. Perrine...

Sterling v. Peet....

v. Drake.

State, Berkley, pros., v. Elizabeth, 41 N. J. L. 517....

State Board v. Morris & Essex R.

State Tax on Foreign-Held Bonds, 15 Wall. 300..

Stewart v. Camden, &c., Ry. Co.. 33 N. J. L. 115.

9 N. J. L. 139.

Stockton v. Board of Education.. 72 N. J. L. 80.

Stokes v. People..

674

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480.

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366

624

532

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St. Louis, S. W. R. R. Co. v.
Grayson

St. Paul v. Chicago, &c., Ry. Co.. 63 Minn. 330.
Sullivan v. McOsker..

Swanson v. Central Railroad Co.. 63 N. J. L. 605.
Sweeney v. Irving...

115 S. W. Rep. 933.

251

116

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Tate v. Yazoo, &c., R. R. Co..... 29 So. Rep. 392.
Tayloe v. Merchants Fire Insur-

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Trenton v. Trenton Street Ry. Co., 72 N. J. L. 317.

601

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Van Horn v. Board of Freeholders, 83 N. J. L. 239.
Van Ness v. Telephone Company..
Van Pelt v. Schauble..
Van Riper V. Essex
Board

680

78 N. J. L. 511.

644

68 N. J. L. 638.

619

Pub. Rd.

38 N. J. L. 23.

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Virtue v. Freeholders of Essex.... 67 N. J. L. 139.
Voorhees v. Smith Schoonmaker

677

Co.

86 N. J. L. 500...

402

W.

Waibel v. W. J. & S. S. R. R. Co., 87 N. J. L. 573..
Walker v. Whitehead..

83 U. S. 314..

411, 726

38

Walling v. Central Railroad Co.. 82 N. J. L. 506.

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401

401

sey City Water Supply Co..... 91 Atl. Rep. 337.. Weidman Silk Dyeing Co. V.

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$4 Atl. Rep. 273; 91 Id. 353, 401

Weiner v. Van Rensselaer.

Wendell v. Mugridge..

Wentink v. Freeholders.

West v. State.....

Wheaton v. Hibbard...

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West Jersey Railroad Co. v. Ewan, 55 N. J. L. 576..

Whitall V. Freeholders of Glou

cester

White v. Carroll..

v. France...

Wightman v. Brenner..

Wiley v. Solvey Process Co...
Wilkinson v. Rutherford.
Williams v. Brokaw...

v. N. Y. C. R. R. Co.... Williamson v. N. J. Southern Ry. Co.

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CASES DETERMINED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW JERSEY.

NOVEMBER TERM, 1915.

CONSTANTINE GRYBOWSKI, ADMINISTRATOR, V. ERIE RAILROAD COMPANY.

Submitted March 18, 1915-Decided November 5, 1915.

1. A person who is employed by a railroad company in maintaining the effectiveness of a part of the railroad's plant, which is used both in interstate and intrastate commerce, is entitled to maintain an action under the Federal Employers' Liability act, when injured while engaged in such employment.

2. Plaintiff's decedent was working in a manhole under a railroad track in a yard and was just coming out of it when he was run over and killed by a locomotive backing on the track. There was evidence that the engineer made no special observation of the manhole and that no warning was given decedent. There was also evidence that decedent came out of the manhole in response to a signal of a fellow-employe. Held, that there was sufficient evidence of negligence to warrant a denial of a motion to direct a verdict in favor of the plaintiff.

3. The doctrine of assumption of risk has no application to such risks as arise solely and directly out of the negligent acts of a fellow-servant. Even if it did so apply, it would have no pertinence in the case of an accident under the Federal Employers' Liability act which declares that every common carrier by railVOL. LXXXVIII.

1

Grybowski v. Erie Railroad Co.

88 N. J. L.

road, engaged in interstate commerce, shall be liable in damages to the personal representative of any employe who shall lose his life while employed in such commerce, when his death results "from the negligence of any of the officers, agents or employes of such carriers."

4. Since the Federal Employers' Liability act of 1908 supersedes all state laws upon the subject of the liability of carriers by railroad, engaged in interstate transportation, to their workmen, injured while employed in such commerce-Held, that no state, by subsequent legislation, can impair or curtail the rights conferred upon the employe, or his personal representative, or the liabilities imposed upon the carrier by the federal act.

5. Where a request to charge the jury is made, all that the trial judge is required to do in dealing with such request, when the legal principles embodied therein are sound, and are applicable to the matter under discussion, is to charge the substance thereof.

On appeal from the Hudson Circuit Court.

Before GUMMERE, CHIEF JUSTICE, and Justices GARRISON and MINTURN.

For the appellant, George S. Hobart.

For the respondent, Frank M. Hardenbrook.

The opinion of the court was delivered by

GUMMERE, CHIEF JUSTICE. This action was based upon the federal statute of April 22d, 1908, entitled "An act relating to the liability of common carriers by railroad to their employes in certain cases." The plaintiff's intestate, on January 11th, 1912, while in the employ of the railroad company at its ashpit, in its Jersey City terminal yard, was run over and killed by a locomotive engine. This ashpit was constructed between and underneath certain of the yard tracks, and incoming locomotives were moved over it so that the ashes which had accumulated during their trips might be dumped into it. The plaintiff's decedent was engaged in cleaning out the ashes therefrom, and was just coming out of the pit when the accident occurred which caused his death.

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