211 A.D. 243 | N.Y. App. Div. | 1925
We are to discuss the liability of an employer, a common carrier, a steam railroad company, engaged in both interstate and intrastate commerce, to its employee who was an engine fire cleaner and when injured was helping to dump cinder buckets. While attaching the hook of a crane into the handle of a bucket, his
The question presented is whether or not the service being rendered by claimant when injured was a service in interstate commerce.
It hardly needs stating that, if the employment is within the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143), compensation under the New York State Workmen’s Compensation Law cannot be had. This Federal act applies only if the employee of the carrier, doing both kinds of commerce, is working in interstate commerce at the time of the injury; it is immaterial whether the employee had been immediately before, or was to be immediately after, engaged in commerce between States. (Chicago, B. & Q. R. R. v. Harrington, 241 U. S. 177.) The true test of liability under the Federal act is: “ Is the work in question a part of the interstate commerce in which the carrier is engaged? ” (Pedersen v. D., L. & W. R. R. Co., 229 U. S. 146); or, as expressed in the Harrington Case (supra): “ Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it? ” The cases deal with three kinds of instrumentalities of commerce used by a common carrier: (1) Movables, as implements, tools and vehicles; (2) supplies, as coal and sand; (3) the plant and its fixtures. (Philadelphia & Reading R. Co. v. Hancock, 253 U. S. 284, 285; Minneapolis & St. Louis R. R. Co. v. Winters, 242 id. 353; Chicago, B. & Q. R. R. v. Harrington, 241 id. 177; Erie R. R. Co. v. Szary, 253 id. 86; Southern R. Co. v. Puckett, 244 id. 571; Pedersen v. D., L. & W. R. R. Co., 229 id. 146; Erie R. R. Co. v. Collins, 253 id. 77; Roush v. Baltimore & O. R. Co., 243 Fed. 712; Grybowski v. Erie R. R. Co., 88 N. J. Law, 1.)
In this case we have to consider an employee working in or on the plant. In Erie R. R. Co. v. Szary (253 U. S. 86) the employee, Szary, was employed drying sand in stoves in a building near the track and supplying it to locomotives engaged in both kinds of
The ash buckets in the trench, when ovárfilled, would obstruct traffic. To keep this track clear was necessary to the operation of the engines. The injured employee, while dumping the buckets, was clearing the track, was maintaining the effectiveness of the
The award should be reversed and the claim dismissed.
Award reversed and claim dismissed, with costs against the State Industrial Board.