188 A. 119 | Pa. | 1936
Argued October 7, 1936. This appeal is from judgment for plaintiff in an action to recover for injury sustained by plaintiff while engaged in repairing a chute on a tipple used for coaling locomotives in defendant's Connellsville Yard. The coal tipple and the tracks alongside were instrumentalities used in interstate and in intrastate commerce. For present purposes we assume defendant's negligence as established by the verdict. Plaintiff sues under the Federal Employers' Liability Act, 45 USCA, sections 51-59. The defense was that plaintiff was not employed in interstate commerce, that his remedy, if any, was under the state Workmen's Compensation Law. He was a carpenter-helper. With other workmen he was replacing a chute (number 2 chute) on the coal tipple and was in the act of fastening a safety chain linking the end of the chute to the side of the tipple, when the injury occurred; it resulted from the breaking of the gin-pole (a yellow pine timber 3 inches x 6 inches) the end of which carried the block and tackle with which the chute had been hoisted and hinged into place. The coal tipple was about 150 feet long, and contained thirteen chutes. During the time occupied in taking down the old chute and replacing it, number 2 chute was necessarily out of service for both classes of commerce; this part of the instrumentality was being repaired for future use. The ropes used to raise the chute and hold it in place while it was being permanently fastened had been taken by the men across the track, adjoining the tipple, for their convenience in pulling up, instead of so managing them that they would not obstruct the track as the evidence showed might have been done. While the workmen were so engaged on the chute, an engine-hostler came along and told them to hurry, that he had an engine "to be coaled." It is not clear whether he wished them to get off the track with their ropes or to put the chute into service. *176 We assume that this engine was employed in interstate transportation; other chutes were available for coaling it.
The only question we need consider is whether plaintiff was employed in interstate transportation as the Supreme Court has defined that term in this connection. The test is: Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?: Chicago, etc., R. R. Co. v.Industrial Commission of Illinois,
Judgment reversed and now entered for defendant.