Lynch v. Central Vermont Ry., Inc.

• Decision Date: 10 June 1936
• Citation: 185 A. 569,121 Conn. 461
• Court: Connecticut Supreme Court
• Parties: LYNCH v. CENTRAL VERMONT RY., Inc.

185 A. 569

121 Conn. 461

LYNCH v. CENTRAL VERMONT RY., Inc.

Supreme Court of Errors of Connecticut.

June 10, 1936

Appeal from Superior Court, New London County; Frank P. McEvoy Judge.

No error.

Arthur T. Gorman, and Herbert L. Emanuelson, both of New Haven, for appellant.

Arthur M. Brown and Charles V. James, both of Norwich, for respondent.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.

AVERY Judge.

The respondent operates a steam railroad engaged in both interstate and intrastate transportation. The claimant is the daughter of Patrick Lynch, upon whose earnings she was totally dependent. He was employed by the railroad company as a crossing tender where its tracks cross Main street between Bean Hill and Yantic in Norwich. On July 19, 1935, while in the course of his employment, he was sitting at his station on the southwest side of the crossing when a trolley approached from Yantic. He started to cross the highway to set the semaphore located northwest of the crossing and west of the main line of the railroad and, while hastening across the road, was struck by a passing automobile and received injuries from which he died upon the following day.

The commissioner concluded that at the time of his injury the deceased was not engaged in interstate commerce, in that he was acting for the protection of the local trolley car, and that the claimant could maintain a proceeding for compensation under the Workmen's Compensation Act of this state (Gen. St. 1930, § 5223 et seq., as amended). On appeal the superior court decided that at the time he received his injuries the deceased was engaged in an act so directly and immediately connected with interstate transportation as substantially to form a part or a necessary incident thereof and that consequently the claimant's rights, if any, were under the federal law and the compensation commissioner was without jurisdiction in the premises. The only question involved in this appeal is the correctness of this conclusion.

In 1893, the Norwich street railway company, operating a local trolley line between Norwich and Yantic, applied to the railroad commissioners for permission to cross at grade the tracks of the railroad company, and presented to the commissioners an agreement between them providing, among other things, that in case permission were granted, the street railway company would construct a semaphore signal south of the crossing to be operated by its employees for the purpose of warning engineers on northbound trains of trolley cars crossing the track. The agreement also provided that it should continue in force as long as the street railway crossed the steam railroad at grade, and that in case other precautions should thereafter be found necessary by the railroad commissioners for public safety at the crossing, the street railway company would, at its own cost, comply with all orders or recommendations that the commission might make. Thereafter, in 1896, the steam railroad company made application to the railroad commissioners for an order directing additional precautions at the crossing and the railroad commission thereafter made an order that another semaphore signal should be erected at a point 1, 000 feet north from the crossing. The order further provided for the operation of these signals by the employees of the street railway company when trolleys approached the railroad crossing, and additional regulations requiring them to warn trains in case a trolley car should be stopped upon the track and unable to proceed. Subsequently, in 1922, after one man trolley cars were adopted by the street railway company, an agreement was made between the steam railroad company and the street railway company providing that the operation of the signals at the crossing should be attended to by two flagmen employed by the steam railroad company who would be on duty during the entire time when trolley cars were in operation. The crossing tenders were employed by the steam railroad company, but by agreement with the street railway company the latter remitted to the railroad company 70 per cent. of their wages. The deceased was one of the crossing tenders so employed and received his injuries while in the discharge of his duties as hereinbefore set forth.

In determining whether or not the deceased was engaged in interstate commerce, the test adopted by the Supreme Court of the United States is: " Was the employee, at the time of the injury, engaged in interstate transportation, or inwork so closely related to it as to be practically a part of it?" Shanks v. Delaware, L. & . W. R. Co., 239 U.S. 556, 558, 36 S.Ct. 188, 189, 60 L.Ed. 436. L.R.A. 1916C 797; Erie R. Co. v. Winfield, 244 U.S.170. 37 S.Ct. 556, 61 L.Ed. 1057, Ann.Cas.1918B, 662; Illinois Central R. Co. v. Behrens, 233 U.S. 473, 478, 34 S.Ct. 646, 58 L.Ed. 1051, Ann.Cas. 1914C, 163; Chicago, B. & Q. R....