O'Donnell v. Director General of Railroads

• Decision Date: 20 March 1922
• Docket Number: 258
• Citation: 117 A. 82,273 Pa. 375
• Parties: O'Donnell, Appellant, v. Director General of R.R
• Court: Pennsylvania Supreme Court

117 A. 82

273 Pa. 375

O'Donnell, Appellant, v. Director General of R.R

No. 258

Supreme Court of Pennsylvania

March 20, 1922

Argued February 14, 1922

Appeal, No. 258, Jan. T., 1922, by plaintiff, from judgment of C.P. Schuylkill Co., Sept. T., 1921, No. 500 1/2 sustaining decision of Workmen's Compensation Board, in case of Pauline O'Donnell v. Director General of Railroads, operating Lehigh Valley Railroad Co. Affirmed.

Appeal from Workmen's Compensation Board. Before BERGER, J.

The opinion of the Supreme Court states the facts.

Judgment for defendant. Plaintiff appealed.

Error assigned, inter alia, was judgment, quoting it.

The assignments of error are overruled and the judgment is affirmed.

Roger J. Dever, for appellant. -- The movement of engine No. 1676 was not an interstate commerce movement: Chicago, etc R.R. v. Harrington, 241 U.S. 177; Minneapolis, etc., R.R. v. Winters, 242 U.S. 353; Erie R.R. v. Welsh, 242 U.S. 303; Anderson v. Steel Co., 255 Pa. 33.

The employer's contract in this case was to pay to the employee or his dependents according to the schedule contained in the Pennsylvania Workmen's Compensation Act and the contract being complete, the employer cannot be relieved of its obligation by asserting that the accident happened in interstate commerce.

Otto F. Farquhar, for appellee. -- The work in which decedent was engaged, at the time of his death, was directly and closely connected with interstate commerce: North Carolina R.R. v. Zachary, 232 U.S. 248; Scanlon v. Payne, 271 Pa. 391.

Even though decedent was on his way to perform work of interstate character, if it be considered in that light, he would be engaged in interstate commerce: Erie R.R. Co. v. Winfield, 244 U.S. 170; Knorr v. R.R., 268 Pa. 172; N.C.R.R. v. Zachary, 232 U.S. 248; Hogarty v. Ry., 245 Pa. 443.

Liability of an employer for compensation under the Pennsylvania Workmen's Compensation Act, if he fails to reject liability therefor in the manner prescribed by said act, exists by reason of a statutory presumption.

The question raised by appellant has been passed upon and finally determined by the Supreme Court of the United States: Erie R.R. v. Winfield, 244 U.S. 170; N.Y.C. & H.R.R.R. Co. v. Tonsellito, 244 U.S. 360.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

The plaintiff in this case, Pauline O'Donnell, widow of John J. O'Donnell, was denied an award under the Workmen's Compensation Act, on the ground that her husband's death had come about by an accident occurring in the course of interstate commerce; the referee, the board and the court below agreed in this conclusion; judgment was entered for defendant, and plaintiff has appealed.

Defendant railroad is a common carrier, engaged in intra- and interstate commerce; it operates a train from Pittsburgh, Pa., to Phillipsburg, N.J.; on June 1, 1920, engine No. 1676 was assigned, by proper authority, to haul this train from Mt. Carmel, an intermediate Pennsylvania point, to its destination; plaintiff's husband was directed to run the engine from Hazleton, Pa., where it was stationed, to Mt. Carmel, Pa., where it was needed for the purpose of its assignment, and, after its delivery, he was to take charge of another engine, attached to a freight train containing interstate shipments; engine No. 1676 left the track, on the run from Hazleton to Mt. Carmel, thus causing the injury which resulted in O'Donnell's death.

The derailed engine was due to arrive at Mt. Carmel at ten o'clock in the morning; and, in regular course, would not be required to haul the train to which it was assigned until about five o'clock that evening. Plaintiff contends that this break in the time, leaving room for a change of assignment, and the fact that, when the accident happened to her husband, the train to which his engine had been assigned was being drawn from Phillipsburg to Mt. Carmel by another locomotive, which would have had to be relieved from service before engine No. 1676 could be attached to the train in question, showed, when given due weight, that the latter engine was not in interstate service at the time of its derailment. In disposing of these contentions, the compensation board correctly states: "Engine No. 1676, at the time it was being driven by O'Donnell, had a definite assignment to interstate commerce, and O'Donnell himself had definite orders to deliver the engine at Mt. Carmel and then to assist in the movement of an interstate freight train, [therefore] what O'Donnell was doing at the time of the accident was certainly an incident of interstate commerce."

Numerous decisions of the Supreme Court of the United States sustain the view of the board; which, on appeal, was adopted by the common pleas: see P. & R. Ry. Co. v. Polk, 41 U.S. S.Ct. Reporter 518, 519; P. & R. Ry. Co. v. DiDonato, U.S. 41 S.Ct. 516, 517; Southern Pacific Co. v. Industrial, etc., Commission, 251 U.S. 259, 263; Kinzell v. Chicago, etc., Co., 250 U.S. 130, 133; P. & R. Ry. Co. v. Hancock, 253 U.S. 284, 286; Erie R.R. Co. v. Collins, 253 U.S. 77, 83; Erie R.R. Co. v. Szary, 253 U.S. 86, 89; Shanks v. D., L. & W.R.R. Co., 239 U.S. 556, 558; Pederson v. D., L. & W.R.R. Co., 229 U.S. 146, 151.

In the recent case of Koons v. P. & R. Ry. Co., 271 Pa 468, 470, Mr. Justice KEPHART, speaking for this court, says: "Where intra- and interstate acts are mingled, or at times alternate, there is no separation; the interstate feature predominates and by it must the questioned act be judged. 'To separate duties [of an employment] by moments of time or particular incidents of its exertion would be to destroy its unity. . . . This service and the other service cannot be separated in duty and responsibility': P. & R. Ry. Co. v. DiDonato, 41 U.S. Supreme Court Reporter 516. Employment follows interstate transportation and begins when the workman, on a carrier's premises, makes a forward move to serve in that traffic or employment and ends only after he has completely dissociated himself therefrom." See also P. & R. Ry. Co. v. Polk, 41 U.S. Supreme Court Reporter, 518, 519, where Justice McKENNA says: "We cannot accede to the view there is a presumption that duties performed on a train constituted of interstate and intrastate commerce were performed in the latter commerce. The presumption, indeed, might be the other way. It is to be remembered it is the declaration of ...