Koons v. Philadelphia & Reading Ry. Co.

• Decision Date: 01 July 1921
• Docket Number: 4
• Citation: 271 Pa. 468,114 A. 262
• Parties: Koons et ux., Appellants, v. Philadelphia & Reading Ry. Co
• Court: Pennsylvania Supreme Court

114 A. 262

Koons et ux., Appellants, v. Philadelphia & Reading Ry. Co

271 Pa. 468

No. 4

Supreme Court of Pennsylvania

July 1, 1921

Argued May 23, 1921

Appeal, No. 4, May T., 1921, by plaintiffs, from judgment of C.P. Dauphin Co., June T., 1916, No. 410, for defendant n.o.v., in case of John L. Koons et ux. v. Philadelphia &amp Reading Railway Co. Affirmed.

Trespass for death of plaintiff's son.

The opinion of the Supreme Court states the facts.

At the trial before McCARRELL, J., the jury returned a verdict for plaintiffs for $1,690. Subsequently, the court, in an opinion by HARGEST, P.J., entered judgment for defendant n.o.v Plaintiff appealed.

Error assigned, among others, was judgment, quoting record.

Judgment affirmed.

John R. Geyer and Elmer E. Erb, for appellants. -- The case at bar very nearly resembles in point of facts the case of Central Railroad of New Jersey v. Paslick, 239 F. 713. See also Chicago, B. & Q.R.R. v. Herrington, 241 U.S. 177.

John T. Brady, for appellee. -- Both the railway company and Lester M. Koons, the deceased, were engaged in interstate commerce at the time of the accident that resulted in the death of Koons: North Carolina R.R. v. Zachary, 232 U.S. 248; Minneapolis, etc., R.R. v. Winters, 242 U.S. 353; Pedersen v. D., L. & W.R.R., 229 U.S. 146; Shanks v. D., L. & W.R.R., 239 U.S. 556.

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

OPINION

MR. JUSTICE KEPHART:

Appellants' position is that deceased was not engaged in interstate commerce at the time of the accident that resulted in his death. The test seems to be, In what was defendant company's instrumentality of transportation engaged at the time the employee received his injury? There are no degrees of such interstate engagements; one car in such service makes the whole train subject thereto. "One element of interstate commerce . . . determines the remedy": R.R. v. Polk, U.S. Supreme Court (not yet reported). As the federal law supersedes the state law, so do acts done thereunder, and 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 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": Phila. & Reading Ry. Co. v. Di Donato, U.S. Supreme Court (not yet reported). 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. Interstate employment follows such character of commerce, if the instrumentality is wholly or partly engaged therein. This seems to be the doctrine of Minneapolis, etc., R.R. Co. v. Winters, 242 U.S. 353, 357; Pedersen v. D., L. & W.R.R. Co., 229 U.S. 146, 151; Walsh v. N.Y., etc., R.R. Co., 223 U.S. 1; St. L., etc., Co. v. Seale, 229 U.S. 156, 159; N.Y., etc., Co. v. Carr, 238 U.S. 260, 263; N.C.R.R. Co. v. Zachary, 232 U.S. 248, 257, 260; Shanks v. D., L. & W.R.R. Co., 239 U.S. 556, 558.

Assuming the above-mentioned standard to be the correct one, does the fact that, while the instrumentality is thus engaged, it is disabled and temporarily taken away to a shop for repairs, alter its interstate character, the injury occurring on the instrumentality during its temporary absence? The answer to this question relates back to the first, What was it engaged in at the time it was disabled? If, at that time, it was in an interstate movement, its disablement does not suspend nor destroy that interstate character; the employment follows the kind of instrumentality through the delay in the repair shop until it returns to the transportation indicated, -- such being the fact in this case. This seems to be the doctrine in Great Northern Ry. v. Otos, 239 U.S. 349, 351; Minneapolis, etc., R.R. Co. v. Winters, supra; Johnson v. S.P.R. Co., 196 U.S. 1, 5. If temporary absence, by reason of disability, is sufficient to take it out of interstate movement, how long must the absence be to relieve it of such character? The true test in all such cases seems to be, Was its withdrawal temporary or permanent? We need not here determine what might control if the instrumentality was diverted to intrastate service after it left the repair shop.

Suit was...