24 A.2d 63 | Pa. Super. Ct. | 1941
Argued December 9, 1941.
This is a workmen's compensation case. The question raised on this appeal is whether the deceased, Thomas F. Nicholas, was engaged in interstate transportation at the time he was accidentally killed on September 13, 1937, in the course of his employment with defendant, or in work so closely related to such transportation as to be practically a part of it. SeeChicago North *310 Western Ry. Co. v. Bolle,
Claimant, twenty-nine years of age, is the daughter of deceased. On August 22, 1938, she filed a claim petition with the Workmen's Compensation Board under our Workmen's Compensation Act of 1915, as amended,
The court below pertinently said: "The case presents the unusual features of an appeal by the person in whose favor an award has been made and of an insistence by the defendant upon being bound by the award. The explanation for this situation is that claimant has a suit pending before the federal courts to enforce a claim arising under the Federal Employers' Liability Act and desires to prosecute that suit to judgment. Defendant probably courts our forum because there is no apparent dependency upon which a large workmen's compensation award could be based." Claimant's dilemma is the result of trying to play safe by instituting an action in two different forums.
A final judgment for compensation under our workmen's compensation laws would be conclusive in the federal court, and could not be attacked collaterally by claimant. Chicago, RockIsland Pacific Ry. Co. v. Schendel, Adm'r,
The undisputed facts are these: On September 13, 1937, and for some time prior thereto, deceased was in the employ of defendant as a member of a train crew. On that day he was a flagman on a freight train which contained nine cars and operated from East Penn Junction at Allentown, Pa., to Kutztown, Pa. One of the cars, containing wheat, was billed from Buffalo, N.Y., *312 and consigned to Macungie, Pa. The other cars were in intrastate service. Macungie, the point of destination of the car of wheat, is on the Allentown-Kutztown run, and is a short distance beyond and west of Emmaus, Pa.; both towns are situated in Lehigh County. The Donaldson Iron Company is located at Emmaus. The train crew had standing instructions to do such intermill shifting operations at the private yards of the iron company as that company might require. When the train left East Penn Junction at Allentown on the morning of the day of the accident, the conductor in charge had received no instructions relative to any movement of cars at the yards of the iron company. On arrival at the iron company the train crew delivered two cars of coke, and the foreman of the iron company requested the train crew to move a car loaded with pipe from what was known as the "new dock" track to the "old dock" track and into the machine shop. For this shifting operation defendant assessed a charge in accordance with its tariff schedule. Due to the extreme curvature of the "old dock" track it was necessary to have twelve cars ahead of the engine in addition to the car to be placed in the machine shop. When the train arrived at the yard it was made up of seven cars, including the car destined for Macungie from Buffalo. The seven cars, including the interstate car, and the engine and tender, remained intact. The entire train picked up additional cars standing in the yard of the iron company for the purpose of making the shifting movement. While thus engaged, deceased was killed as the train was picking up, for use as a pusher, an empty car located on the "new dock" track. After the accident the intermill movement of the car loaded with pipe was completed. The car of wheat was then taken to its destination at Macungie, Pa.
As the facts are not in controversy, the nature of the employment is a question of law. Philadelphia Reading Ry. Co.v. Hancock,
It is a recognized principle that if one of the cars of the train was interstate in character the entire train assumed an interstate character. Koons et ux. v. Philadelphia ReadingRy. Co.,
Appellant contends that the intermill shifting of the cars at the yard of the iron company removed deceased from interstate transportation, and that, therefore, our Workmen's Compensation Act,
It is the established rule that the status of an employee with respect to interstate commerce where the service is separable is tested by the work that he is actually performing at the time (Illinois Central R. Co. v. Behrens,
A car being moved from a point in one state to a point in another is impressed with the character of interstate transportation which will follow and attend the shipment until the transit ceases. Rich v. St. Louis San Francisco R. Co.,
We find no difference, in principle, between this case and a case where a local freight car is picked up and delivered to another destination on the run before the delivery of an interstate car. In New York Central Hudson River R. Co. v.Carr, supra, it was held that *316 the switching of an intrastate car out of an interstate train was interstate transportation. The fact that in the instant case the switching of the car of pipe, which was picked up on one track by the interstate train and delivered to another, occurred within the yard of the iron company is not controlling.
Wabash Ry. Co. v. Bridal, 8 Cir.,
In Sullivan v. Wabash Ry. Co., 6 Cir.,
In Rogers v. Mobile Ohio R. Co.,
In Youngstown Ohio River R. Co. v. Halverstodt, 6 Cir.,
As in the court below, appellant relies on Murray *318 v. Pittsburgh, Cincinnati, Chicago St. Louis R. Co.,
Judgment of the court below is affirmed.