195 A. 754 | Pa. Super. Ct. | 1937
Argued September 28, 1937. The prime question involved in this workmen's compensation case is whether the claimant's decedent at the time of his death was engaged in interstate transportation or in matters so closely related thereto as to be considered a part thereof. If he was, the rights of the claimant are governed by the Federal Employers' Liability Act and not by the Pennsylvania Workmen's Compensation Act. The referee and board found for *291 the claimant and on appeal a court of common pleas entered judgment for the defendant.
Emanuel Mason, an employee of the defendant, was killed while on its premises when on his way to work, and we will assume for the purposes of this appeal that he was in the course of his employment with defendant when he received the fatal injury. He had been regularly employed at Wayne Junction Transfer, a classification station of the defendant established to receive, transfer and ship interstate and intrastate freight to and from all stations on the defendant's lines.
We are all of the opinion that the decedent was engaged in interstate transportation at the time of the fatal accident for the reasons that the employee's duties as to the two kinds of transportation were not practically separable, that the interstate character of the work therefore predominated, and his status when on the premises on his way to work partook of the nature of the work as a whole which was of an interstate character. On the question involved the decisions of the Supreme Court of the United States are controlling (Mayers v. Union R.R.Co.,
"By the terms of the [Federal] Employers' Liability Act the true test is the nature of the work being done at the time of the injury, and the mere expectation that plaintiff would presently be called upon to perform a task in interstate commerce is not sufficient to bring the case within the act": Erie R. Co. v.Welsh,
While going to work is like returning from work, and each is a part of the work of the day, when an injury occurs when an employee is on the way to work it may not yet have been determined what the task of the employee will be on that day. When a task has not yet been assigned to the employee, there is no determined class to which the going to work is an incident, and a mere expectation that the employee will presently be called upon to perform a task in interstate commerce is not sufficient to fix the character of the employment. Where a task has been assigned by specific orders given to the employee or the nature of the work to be performed may be inferred from a uniform course of employment, a different question is presented. While we have found no decisions of the United States Supreme Court directly in point, the principle may be inferred from numerous dicta.
Even when it may be determined from the evidence that the employee has been assigned to a certain kind of work for the day so that it may be said what his task will be, such orders may contemplate that he will be engaged for the day exclusively in one class of transportation, interstate or intrastate, or during the particular day in both classes where the tasks in each are separable, or he may be directed to engage in an employment where the work is of such a nature that it concerns at the same time both commerces and it is not *293
practicable to separate his duties "by moments of time or particular incidents of its exertion," for to do so "would be to destroy its unity and commit it to confusing controversies":Phila. R. Ry. Co. v. Di Donato,
We have had for consideration in this court several cases involving claims under our compensation law where the employee was injured on the premises where he was employed and while on the way to work and where the defense was set up that the employee was at the time engaged in interstate transportation. In a number of those cases the employee engaged in both classes of transportation and the right to compensation turned on the question whether the duties of the employee in the respective kinds of transportation were separable.
In Reese v. Penna. R.R. Co.,
In Velia v. Reading Co.,
It has frequently been held that a member of a shifting crew in a railroad yard may on the same day at times be engaged in interstate transportation and at other times in intrastate transportation. That is, that the work of such an employee may be separable as to the two kinds of commerce: Erie R. Co. v. Welsh,
supra; Reese v. Penna. R.R. Co., supra; Mease v. Reading Co.,
supra; Illinois Central R. Co. v. Behrens,
One engaged as a flagman at a crossing over which both kinds of transportation pass (Phila. R. Ry. Co. v. Di Donato, supra;Brown v. Lehigh V.R.R. Co.,
This makes necessary a further consideration of the facts found by referee and board and those admitted. Emanuel Mason had for a period of seven years been regularly employed at Wayne Junction Transfer which was a classification yard. At this place both interstate and intrastate freight were received, classified and shipped to points both within and without the state. It was the duty of Mason to take part in this movement of freight by separating and conveying separate packages or parcels by truck from one car to another.
Mason having regularly performed the same work for seven years, the only fair and reasonable inference is that he was to engage in that kind of work on the day he was killed for he had then entered the premises of the defendant and at about the time he regularly began his work. Such approach to his work after he was on the premises, like his trips at the close of his work and while on the premises of defendant, "was a necessary incident of his day's work": Erie R. Co. v. Winfield, supra.
There remains for consideration the nature of that work. The fact finding bodies, referee and board, were warranted in concluding that it was not practicable to separate his duties by moments of time or particular incidents of their exertion. Even the movement of a particular parcel was a part of the prime business of the transfer which was the classification and distribution of freight coming and going in both kinds of transportation of which seventy-five per cent was interstate. The *296 different movements were not a succession of separate tasks but were parts of one unified service.
We are not unmindful of the fact that the United States Supreme Court has held that those who are only remotely concerned in interstate commerce and are not at the time of the accident actively engaged in work so closely related to interstate transportation as to be practically a part of it are excluded from the benefits of the Federal Employers' Liability Act: Shanksv. D.L. W.R.R. Co.,
In Sigler v. P. L.E.R.R.,
Our conclusions are supported by decisions in other jurisdictions: Larkin v. N.Y. Cent. R.R. Co.,
Judgment affirmed. *297