Pittsburgh, C., C. & St. L. R. Co. v. Indus. Comm'n

• Citation: 126 N.E. 128,291 Ill. 396
• Decision Date: 18 February 1920
• Docket Number: No. 12922.,12922.
• Court: Supreme Court of Illinois
• Parties: PITTSBURGH, C., C. & ST. L. R. CO. v. INDUSTRIAL COMMISSION et al.

291 Ill. 396

126 N.E. 128

PITTSBURGH, C., C. & ST. L. R. CO.

v.INDUSTRIAL COMMISSION et al.

No. 12922.

Supreme Court of Illinois.

Feb. 18, 1920.

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge.

Proceeding under the Workmen's Compensation Act (Laws 1913, p. 335) by Joseph Korzeniewski for compensation for death of Frank Rosinske, opposed by the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company, employer. Award by Industrial Commission for complainant affirmed by circuit court, and employer brings error.

Reversed.

O. W. Dynes and Carl S. Jefferson, both of Chicago, and S. D. Scholes, of Springfield, for plaintiff in error.

CARTER, J.

Frank Rosinske was killed on February 5, 1918, in Chicago by being struck by a Chicago, Milwaukee & St. Paul Railway Company train while in the performance of his duties as a crossing flagman, and his administrator made application before the Industrial Commission for an award, on account of said death, against plaintiff in error. After a hearing the arbitrator held that the administrator could not recover, for the reason that deceased was engaged in interstate commerce at the time of the injury. On petition for review the Industrial Commission set aside the arbitrator's finding, and held that the employé was engaged in intrastate commerce and the administrator could recover. The decision of the Industrial Commission was affirmed by the circuit court of Cook county. A petition for a writ of error was thereafter filed in this court and allowed, and the case is now here thereunder.

The deceased was a crossing flagman employed by plaintiff in error in Chicago where Green street crosses its tracks. Plaintiff in error has several tracks at this intersection, as has also the Chicago, Milwaukee & St. Paul Railway Company. Some of these tracks are used jointly by the two companies-particularly the two most northerly, called tracks 1 and 2. On these two tracks local and through passenger trains and a few freight trains were operated before and at the time of the accident. The testimony shows, without contradiction, that these tracks were used for both interstate and intrastate commerce. The crossing was protectedby gates operated by air-pump devices controlled by a gateman in a tower. The deceased was a crossing watchmanor flagman standing on the ground at the crossing, and his duties required him to stop persons, teams, and other traffic when a train approached the crossing, to flag trains when necessary for their protection, and generally to keep these tracks clear, both as to local and through trains, which he did by means of a stop disc held in his hands. His duties naturally required him to look and listen toward all four directions. On the morning of the accident a through train, known as No. 131, backed in from where it had been made up in the Western Avenue yards of the Chicago, Milwaukee & St. Paul Railway Company, on joint track 2, going east towards the Union Station at Canal street, preparatory to taking on passengers. A local train of the same company, known as No. 32, which had come from Deerfield, Ill., had discharged its passengers at the Union Station and was backing up west, on track 1, towards the yards. As...