Opinion
November 13, 1940.
Appeal from State Industrial Board.
The sole question involved on this appeal is the question of interstate commerce. Claimant-respondent was employed by the Pennsylvania Railroad Company at its Thirty-third Street Station in the city of New York. He was engaged in mixing cement for use in repair work and suffered a hernia while lifting a bag of cement. The tracks in the Pennsylvania Station are instrumentalities of interstate commerce since the Pennsylvania Railroad trains coming into the station come from the State of New Jersey and other States. The Board found that the work being done was of a local character and that the track on which the plaintiff was injured had been withdrawn from service in interstate commerce. As a matter of fact, these tracks were out of service to permit repairs from ten-fifty-three A.M. until two-forty-five P.M., and claimant was injured at eleven-thirty A.M., thirty-seven minutes after the track was temporarily out of service. Clearly claimant was engaged in interstate commerce at the time of the accident. By reason of the peculiar location, all trains leaving and coming into the Pennsylvania Station are interstate and tracks are as indispensable to interstate commerce as are engines and cars. ( Pedersen v. Del., Lack. West. R.R. Co., 229 U.S. 146.) The decision and award of the State Industrial Board should be reversed and the claim dismissed. Decision and award of the State Industrial Board reversed, with costs against the State Industrial Board, and claim dismissed on the ground that claimant-respondent was engaged in interstate commerce.
I dissent on the ground that at the time of his injury claimant was not engaged in any act of interstate commerce and the instrumentality upon which repairs were being made had been effectively withdrawn from interstate commerce.