Wyatt v. New York, O. & WR Co.

SWAN, Cireuit Judge.

The first contention of the appellant asserts that the plaintiff was not employed in interstate commerce at the time of the accident, and assigns error to the court’s denial of defendant’s motion to dismiss the complaint upon that ground. The facts bearing on this issue were substantially undisputed. Plaintiff was a brakeman in the employ of the railroad, and, on the evening of November 14, 1928, was engaged as one of a train crew which was making up an interstate freight train in appellant’s switchyard at Middle-town, N. Y. The train was being made up upon switch track…