216 A.D. 592 | N.Y. App. Div. | 1926
The deceased employee was working for the New York Central Railroad Company in its roundhouse in the city of Rensselaer. His employment was to clean the fireboxes of engines. All engines coming into the Albany station, which need their fireboxes cleaned, are sent across the river to the Rensselaer roundhouse. There was a so-called “ pool ” of engines, seven in number, which were used in and about the Albany yards. The engines of this “ pool ” were used indiscriminately in interstate and intrastate commerce, but chiefly in the former. There is a heavy grade between Albany and Schenectady going west and an engine from this “ pool ” was assigned to push heavy trains up this grade. These engines also switched the cars from one train to another. Some of the trains go through to points in western States; in some are cars destined for the Boston and Albany road and carrying traffic into the eastern States. They also switch and move cars in trains devoted to intrastate commerce. Occasionally they move ice cars, bring ice to supply the refrigerator cars which are frequently used in interstate commerce. The engines of this “ pool ” with regularity go to the Rensselaer roundhouse about once in twelve hours; it being necessary to clean the fireboxes thus often, else the engine will “ die.” It takes from twenty to thirty minutes for the cleaning of the firebox, when the engine is immediately returned to its duties in the Albany yard.
On May 25, 1921, about noon time, one of the “ pool ” engines, No. 579, Went to the roundhouse for cleaning. The engineer and fireman left the engine. The deceased was at or on the engine when they left. When the engineer returned, the slide under the ash box was open, but the fire was not cleaned, and the deceased was not on the engine. Search was made and his body found in one of the ash pits considerably filled with water; he had been drowned. The award was denied on the ground that Paolo Salvo, the deceased, at the time he received the injuries which resulted in his death, was engaged in interstate commerce.
The deceased was employed, not to work upon a particular engine, but to clean the fireboxes of engines as they were brought to the roundhouse indiscriminately, without regard to whether engaged in interstate or intrastate commerce. He was engaged in a part of the Work connected directly with interstate commerce. The engines whose fireboxes were to be cleaned were not withdrawn from service. The firebox must be cleaned that service may be continued. His service was really a plant service. Employees of common carriers doing both interstate and intrastate commerce, whose duties are similar to those of the deceased in this case, have
The decision should be affirmed.
Decision unanimously affirmed.