169 N.E. 132 | NY | 1929
Peter Libertucci was a watchman or helper in the service of the respondent, an interstate carrier. A piece of coal, falling on his ankle, broke the skin, and set up an infection which resulted in his death. A claim by dependents under the Workmen's Compensation Law (Cons. Laws, ch. 67) has been dismissed upon the ground that he was engaged in interstate commerce when the accident befell him.
Libertucci's duty was to watch an engine between trips and have it ready for use. The engine was assigned to trains 1008 and 1007. Train 1008 ran daily from Utica to Ravena, arriving at the latter place about 10 A.M. Train 1007 ran daily from Ravena to Utica, starting at 4 P.M. No other trains for passengers ran between those points. The helper, when injured, was shoveling coal into the engine to prepare it for its trip. The record does not show the exact hour of the accident. It occurred, however, in the yard before the time for coupling the engine to the train.
The trip between Ravena and Utica is wholly in New York. Even so, its quality as interstate commerce is not lost if packages carried by connecting lines from points without the State are received upon the local train as part of a continuous transit, and then forwarded beyond (North Carolina R.R. Co. v.Zachary,
The claimants concede, as they must, that Libertucci's work in putting the engine in order for the trip that afternoon would have been a part of interstate commerce if at the time of the accident the interstate package was already in Ravena, ready to be put upon the train. They say, however, that for all that appears, the interstate package at that hour was on its way from Ohio, with the possibility that it might not arrive till the afternoon train had gone, or might be held back after arrival and go forward the next day. Possibilities such as these do not affect the inferences that follow from the normal course of business. The normal course of business was such that parcel post, on its way at the time of the accident from a point without the State, was due to arrive at Ravena before this engine could go out. The normal course of business meant besides that being parcel post, the package would be transferred to any waiting train available and dispatched without delay. The only train available that day or any other was train 1007, to which this engine was assigned. In such circumstances, the care of the engine was not "a matter of indifference" so far as interstate commerce was concerned (Pedersen v. D., L. W.R.R. Co.,
Nothing to the contrary was determined in Carey v.N.Y.C.R.R. Co. (
The order should be affirmed with costs.
POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Order affirmed.