210 A.D. 508 | N.Y. App. Div. | 1924
The employee, Albert Dade, was killed by a gunshot while in the yard of his employer at Frankfort, N. Y., and during his working hours. The one question surviving is whether or not the deceased, at the time he met his death, was engaged in interstate commerce. The answer to this question depends upon whether it was his duty to watch the yard or coal cars therein and whether or not he was, at the time, in the performance of that duty. That he was a factory night watchman, employed to watch a number of buildings, is undisputed. In passing from one of these buildings to another he necessarily passed through his employer’s yard where coal cars in transit were often left. His body was found between a westbound track and a west-bound siding, about 125 or 150 feet from a car loaded with hard coal, which car was still in the custody of the employer and yet to be delivered by it. Two bags filled with this hard coal were found about twenty feet from this car. Hearsay evidence informs us that these bags were first found at the end of the car, between it and another car coupled to it. Whoever filled these bags did not take them away. No one, so far as learned, saw the shooting, but it occurred between eight and eleven o’clock, p. m. Deceased had been that evening in the performance of his work as night watchman and there is no evidence that any other employee or watchman was in the yard or had the duty to watch this coal at this time. Deceased was shot through his left side near the heart and apparently dropped where shot, which was near his natural and usual course when going from one building to another; but there is nothing to indicate that the watching of any building gave occasion for the killing. The deceased was employed by Mr. Barker, who is now dead, and who was known as the superintendent of the foundry and other buildings. No one heard the contract of employment between Barker and the deceased and in consequence no witness could name the duties of the deceased as defined by the
It seems to us that the finding that “At the time that Albert Dade received the accidental injury that resulted in instant death, he was not engaged in interstate commerce, nor any work so closely identified therewith as to be a part thereof ” is without evidence to support it. It is a conclusion and the facts on which this conclusion is based are not found. This car of coal had come from Archbold, Penn., and had not yet reached its destination; it was a part of interstate commerce. If we are right in our conclusion that, at the time he was shot, he had detected a person or persons stealing coal and was attempting to apprehend them or drrsjp them away, he was at the time employed if£ interstate commerce. (Industrial Commission v. Davis, 259 U. S. 182.)
The award should be reversed and the claim dismissed.
All concur.
Award reversed and claim dismissed, with costs against the State Industrial Board.