23 A.2d 62 | Pa. Super. Ct. | 1941
Argued October 1, 1941. An award obtained by the plaintiff before the workmen's compensation authorities for the death of her husband was sustained by the court below.
Our primary inquiry is whether or not the decedent, at the time of his fatal injury, was engaged in interstate *589 commerce. There is the additional question respecting the burden of proof. Was it on the claimant, under the record before us, to show that the deceased was engaged in intrastate commerce when the accident occurred?
The facts, which are not in dispute, are as follows. The decedent, William C. Niblett, employed by the defendant as a brakeman, worked in the 52d Street, Philadelphia, classification yards as a dropper and a car rider. Toward the western end of these yards there is a slight elevation known as the "hump" and leading down therefrom in an easterly direction is a main or "ladder track" from which branch a number of classification tracks. Freight cars are pushed by an engine to the top of the hump where they are disconnected and allowed to coast down by gravity on the ladder track and branch off onto the classification track to which they are destined.
In the early morning of February 11, 1937, Niblett was engaged in riding freight cars down the hump to No. 6 classification track. In the neighborhood of 1:30 a.m. he was on a Great Northern car in which there was a wooden reel shipped from Haddonfield, N.J., and consigned to Economy, Pa. This car stalled on the ladder track about 500 feet west of the switch leading to No. 6 classification track. A Canadian National car, also destined for No. 6 track, was dispatched from the hump in an unsuccessful attempt to move it. Three additional cars were sent down the hump for the same purpose but that plan proved ineffective.
Niblett, as head brakeman, remained in charge of these 5 cars. E.H. Estill, assistant yard master, ordered an engine attached to 35 cars to push the stalled 5 cars into the proper position on No. 6 track. The deceased and Estill went into a nearby shanty to keep warm where they remained until the arrival of the train, which was about 40 minutes. Approximately 2:30 a.m., and immediately prior to the time the engine *590 started to push the stalled cars and before they had reached their proper position on No. 6 track, Niblett went to the north side of the draft and Estill went to the south side, both walking eastward toward the head end. This was the last time Niblett was seen alive. Several minutes thereafter the engine and the connected cars bumped the 5 car draft onto No. 6 classification track. About 4:30 a.m. Niblett's dead body was found between the rails and underneath the west end truck of the Canadian National car, which was the second car from the end of the 5 car draft. The back of his head was torn away and he had a large hole in the right side of his jaw.
The board found as a fact that the work decedent had been assigned to prior to his death was completed a few minutes after 2:20 a.m., stating as follows: "Defendant not having met the burden of proof by showing decedent met his death prior to his 5 car draft being properly on track No. 6, it is our opinion that decedent `had completely disassociated himself' from his interstate employment prior to such time."
If this accident occurred when the deceased was engaged in interstate commerce, redress should have been sought under the Federal Employers' Liability Act,
The facts not being in dispute the character of the employment, whether interstate or intrastate, resolves itself into a question of law: Phila. R. Ry. Co. v. Hancock,
Niblett, in classifying cars, might have been, at a given time, engaged either in interstate or intrastate commerce. His service accordingly was separable. The work in which he was engaged at or about the time of this unfortunate accident determines the question of jurisdiction: Illinois C.R. Co. v. Behrens,
There can be no dispute that at the time of the placing of this Great Northern car and the four others on the classification track, Niblett was clearly engaged in interstate commerce. "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.,
While the exact time and manner of Niblett's death are not shown, as no one saw him killed, we think the circumstances indicate quite persuasively that at the time of his death he was engaged in interstate commerce. *592 We have no facts that would reasonably justify the conclusion that he met his death after completing, and entirely "dissociating himself" from, his interstate duties. There was testimony that had Niblett finished his work on interstate transportation and started back to the hump for another car it would be impossible to ascertain, before he was actually assigned to a car, whether it would be an interstate or intrastate transaction.
In view of the evidence showing that the deceased was engaged in work on interstate cars when last seen alive the conclusion of the compensation authorities that the burden of proof was on the defendant to show he was engaged in interstate work was clearly erroneous. It appearing that the decedent's last employment was in interstate service, it was incumbent upon the claimant to show that at the time of his death he was actually engaged in intrastate service: Scanlon v. Payne,
We cannot agree with the compensation board that Salkeld v.Penna. Railroad Co.,
Judgment is reversed and now entered for defendant. *593
