Opinion
April 17, 1939.
June 27, 1939.
Workmen's compensation — Interstate or intrastate commerce — Section foreman — Duties — Fire in shanty — Evidence.
1. In a workmen's compensation case, in which it appeared that decedent was employed by defendant railroad company as a section foreman; that his duties were to see that the tracks and roadbed, used in interstate transportation, were safe for the passage of trains at all times; that on the day of his death he was to walk track; that before his injury his hours of labor had begun; that he was on the premises of the company and had already walked along a part of his section; that he went to an adjoining shanty, which contained his tools, a desk, and a stove to keep the place warm; and that a fire started shortly afterwards and burned him to death; it was held that there was no competent evidence to sustain a finding that decedent had any duties whatever not of an interstate character or that he was engaged in intrastate transportation at the time of the accident.
2. Attending to the stove or doing anything else that he had a right to do while there did not interrupt the employment in interstate transportation.
3. In such case, the burden was upon claimant to prove that decedent was engaged in intrastate transportation at the time of the accident which resulted in his death.
Appeal, No. 44, April T., 1939, from judgment of C.P. Fayette Co., June T., 1937, No. 249, in case of Ida Jennings v. Pittsburgh Lake Erie Railroad Company.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, RHODES and HIRT, JJ. Judgment reversed.
Appeal by defendant from award of Workmen's Compensation Board.
Appeal dismissed and award affirmed, before COTTOM, P.J., DUMBAULD and CARR, JJ., opinion by DUMBAULD, J., dissenting opinion by CARR, J.
The facts are stated in the dissenting opinion of CARR, J., as follows:
In my view this record is barren of evidence to sustain a finding that claimant's decedent was engaged in intrastate transportation at the time of the accident which resulted in his death, or that he had any duties whatever not of an interstate character.
The tracks and roadbed of the defendant carrier are in actual use in interstate transportation, have a definite character as instruments of such commerce, and give such character to those employed on them: Industrial Accident Commission v. Davis, 259 U.S. 182, Jennings was employed as a section foreman. His duties were to see that the tracks and roadbed were safe for the passage of trains at all times. On the days that he walked track he worked alone, walking over the main tracks looking out for landslides, broken rails, defective joints and switches and other obstructions, and after completing the inspection of the main tracks he went over the yards doing the same thing. On the days that he repaired the tracks and roadbed he had a section gang working under him. There was testimony on the part of the defendant that on the day preceding his death he was asked to unload a car of soda ash the following day, but replied that he would be unable to do so because his gang would not then be with him. It was proved that on the day of his death he was to walk track; that before his injury his hours of labor had begun; that he was on his master's premises, and that he had already walked along a part of his section. His use of the adjoining shanty was but an incident of his work and partook of the character of that work. The shanty was put there for his convenience by his employer. There were his tools, a desk on which to write his reports, and a stove to keep the place warm. For what particular purpose he went in is not disclosed. All we know is that a fire started shortly afterwards and burned him to death. In entering the shanty he did not dissociate himself from his employment. Attending to the stove (Brown v. Lehigh Valley R.R. Co., 121 Pa. Super. 380) or doing anything else that he had a right to do while there did not interrupt the employment in interstate transportation.
Not only were Jennings' most important duties in interstate transportation, but he has not been shown to have had any duties at all either outside or separable from it. Although the referee adopts the statement of the witness Null that "the duties of a section foreman are varied," this is a mere conclusion not resting upon any proof. But if we accept it, still there is no evidence that any of his "varied" duties were outside interstate transportation, and certainly none not inseparably connected with it. The yard tracks are just as much an interstate instrumentality as the main tracks. The unloading of freight is also interstate commerce: Baltimore and Ohio S.W.R. Co. v. Burtch, 263 U.S. 540. Of course, he was not thus otherwise engaged when he received his injuries. He was not awaiting orders, nor had he completed the work he was to do.
From the testimony that Jennings had once been asked to use his section gang to unload a car of freight (whether interstate or intrastate we do not know), the majority of the court draw the inferences (1) that he superintended the work of unloading cars; (2) that he could readily be engaged in unloading intrastate cars the whole of any day; and that (3) his duties as related to interstate and intrastate cars were separable. Upon the basis of these speculations, the court reaches the conclusion that Jennings was injured in intrastate transportation. All this is pure conjecture and disregards the burden of proof, which, under the testimony as to the nature of decedent's employment particularly on the day of his death, was upon the claimant: Peak v. Pennsylvania Railroad Co., 121 Pa. Super. 373. Clearly the court here, as in the case last cited, has assumed to know things of which there is no evidence.
We are not here dealing with a situation where a servant passes alternately from employment in one class of transportation to another, but with the case of a servant engaged exclusively in one class of transportation.
For these reasons I would reverse the award.
Defendant appealed.
Error assigned, among others, was dismissal of exceptions.
P.K. Motheral, with him Reed, Smith, Shaw McClay, for appellant.
E.D. Brown, with him W. Brown Higbee, for appellee.
Argued April 17, 1939.
For the reasons so clearly stated by Judge CARR, of the court below, in his dissenting opinion, which will be found in the reporter's statement, we are of opinion that the judgment on the award in favor of the claimant must be reversed and judgment entered for the defendant.
See also Elder v. Penna. R.R. Co., 118 Pa. Super. 137, 148, 180 A. 183; Martini v. Director General, 77 Pa. Super. 529, 534; Phila. R. Ry. Co. v. Di Donato, 256 U.S. 327, 329; Bauchspies v. Central R. of N.J., 287 Pa. 590, 135 A. 728; Glunt v. Penna. R.R. Co., 249 Pa. 522, 95 A. 109.
It is so ordered.