9 A.2d 917 | Pa. Super. Ct. | 1939
Argued October 24, 1939.
We agree with the referee, the board, and the court below that the claimant's decedent was engaged in interstate transportation at the time he was killed and that the federal Employers' Liability Act controls the liability of the defendant carrier:N.Y. Central R. Co. v. Winfield,
We will recite the essential facts. The carrier operated daily a scheduled train between Mount Carmel and Mauch Chunk, Pennsylvania. The train carried both interstate and intrastate passengers, baggage and mail. The defendant company was likewise engaged generally in interstate and intrastate transportation on an extensive scale. The train in question, which consisted of a motor car and trailer, did not leave this state. The equipment used on this trip remained in the railroad yards at Mount Carmel over night each day and was used exclusively on that run. Its motive power was supplied by a gas-electric engine located in the head end of the motor car. This train carried each day from Mauch Chunk to Mount Carmel three locked mail pouches which were destined to points on the defendant's lines in Pennsylvania and which originated at Jersey City. These pouches were transported pursuant to schedules previously made and in effect when the accident to which we will later refer occurred. Under like circumstances this train regularly carried to Mauch Chunk mail which originated in Pennsylvania, the destination of which was outside this state, all pursuant to pre-arranged schedules. *11
These two cars were left each night on a siding within two hundred feet of defendant's station at Mount Carmel. During that time it was the duty of George W. Miller, husband of claimant, to clean and wash the train, supply it with ice and water, recharge its batteries for operation of the gas-electric engine, and fill the radiator of the engine with water. While engaged in such work on the night of July 13 and the morning of July 14, 1937, Miller was shot and killed.
That Miller had some connection with interstate transportation is not open to argument, but we are bound to further inquire whether deceased was engaged in work so closely related to interstate transportation as to be practically a part of it:Shanks v. Delaware, L. W.R. Co.,
If the claimant is to be awarded compensation it must be because the work of the decedent so remotely affected interstate commerce that for practical purposes it was not a part of it. As remoteness is a relative term we are compelled to rely on concrete illustrations rather than definition in order to determine where the line is to be drawn.
The United States Supreme Court held that the requisite employment in interstate transportation existed where a car repairer was replacing a draw bar in a car then in use in such transportation (N.Y., N.H. *12 H.R. Co. v. Walsh,
This court applied the same measure where a railroad policeman was employed to drive trespassers from tracks of a railroad engaged at the time and place of injury in both types of transportation (Elder v. Penna. R.R. Co.,
It was held that the requisite employment in interstate *13
transportation did not exist where an employee was digging coal that was to be used in the company's locomotives moving in interstate commerce (Delaware, L. W.R. Co. v. Yurkonis,
Since the cars upon which Miller was working regularly transported interstate and intrastate shipments and the services in the respective classes of transportation were not separable, the interstate transportation feature predominates and is controlling: Komar v. Penna. R.R. Co.,
It follows that the cars were used exclusively on a train which operated each day in interstate transportation. By a pre-arranged schedule and arrangement with the postal authorities the carrier undertook to transport and did transport this mail. It would seem *14 to be self-evident that any employee engaged in the actual movement of the train would be engaged in interstate transportation. Here the cars were idle for a few hours during the night, but they were not removed from interstate service for these cars, and these alone, were used exclusively in that service. The situation is to be distinguished from that shown in cases where, as a locomotive engaged in shifting, the facilities are used one day or hour in one class of service and then in the other. Here there was no alternation of service.
"Employment follows interstate transportation and begins when the workman, on a carrier's premises, makes a forward move to serve in that traffic or employment and ends only after he has completely dissociated himself therefrom": Koons v. Phila. Reading Ry. Co.,
It is suggested by the appellant that the present case should be distinguished by the fact that the actual movement of the train was within the state and that the train did not take on its interstate character until an interstate shipment was actually placed on the cars. That contention is without merit and was answered by Mr. Justice CARDOZO in Libertucci v. New York C.R.R.Co.,
Judgment affirmed.