Polk v. Phila. & R. Ry. Co.

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtPer Curiam
Citation266 Pa. 335
Decision Date02 February 1920
PartiesPolk <I>v.</I> Philadelphia & Reading Railway Company, Appellant.
266 Pa. 335
Polk
v.
Philadelphia & Reading Railway Company, Appellant.
Supreme Court of Pennsylvania.
January 13, 1920.
February 2, 1920.

Argued January 13, 1920.

Appeal, No. 135, Jan. T., 1920, by defendant, from judgment of C. P. No. 5, Philadelphia Co., Sept. T., 1918, No. 1919, dismissing appeal from Workmen's Compensation Board, which affirmed an award of compensation made by the Referee in the case of Marie E. Polk v. Philadelphia & Reading Railway Co.

Before BROWN, C. J., MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ. Affirmed.

Page 336

George Gowen Parry, for appellant.

Michael D. Hayes, with him Francis M. McAdams and William H. Wilson, for appellee.

PER CURIAM, February 2, 1920:


The defense set up by the appellant to the claim made by the appellee for compensation for the death of her husband is that at the time he received his injuries he was a brakeman in its employ in connection with its interstate commerce business. The referee found that he was an employee of the appellant on a freight train, in the Port Richmond yard, in Philadelphia, at the time of his injuries, which resulted in his death on August 29, 1917. There was no presumption as to the character of his employment. If it was in connection with interstate commerce, as is alleged by appellant, the burden was upon the latter to show that fact: Hench v. Pennsylvania R. R. Co., 246 Pa. 1; Murray v. Pittsburgh, C., C. & St. L. R. R. Co., 263 Pa. 398. The referee found as a fact that the appellant had failed to meet the burden of proof which rested upon it. His distinct finding was "the defendant offered no testimony whatever to show what work John M. Polk was performing at the time he was injured."

Appeal dismissed and award affirmed.

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7 practice notes
  • Elder v. Pa. R. Co.
    • United States
    • Superior Court of Pennsylvania
    • 18 Julio 1935
    ...in Philadelphia & R. Ry. Co. v. Polk, 256 U. S. 332, 41 S. Ct. 518, 65 L. Ed. 958, which reversed the Supreme Court of Pennsylvania (266 Pa. 335, 109 A. 627). In the Polk Case, the deceased employee was engaged as one of a crew handling both interstate and intrastate shipments. In rever......
  • Di Donato v. Philadelphia & Reading Railway Co., 12
    • United States
    • United States State Supreme Court of Pennsylvania
    • 23 Febrero 1920
    ...Pa. 417] 264 Pa. 220), the burden of which rests upon the party alleging it -- here the defendant: Polk v. Philadelphia & R. Ry. Co., 266 Pa. 335. This familiar rule of evidence is especially applicable here, otherwise plaintiff must prove a negative, to wit, that her husband was not ki......
  • Peak v. Pa. R. Co.
    • United States
    • Superior Court of Pennsylvania
    • 16 Abril 1936
    ...train. It is important to note that in that case the duties of the employee were not separable. In Philadelphia & R. Ry. Co. v. Polk, 266 Pa. 335, 109 A. 627, our state Supreme Court likewise held that the burden was on the railroad to show that the employee was engaged in interstate tr......
  • Di Donato v. Phila. & R. Ry. Co.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 23 Febrero 1920
    ...Page 417 264 Pa. 220), the burden of which rests upon the party alleging it — here the defendant: Polk v. Philadelphia & R. Ry. Co., 266 Pa. 335. This familiar rule of evidence is especially applicable here, otherwise plaintiff must prove a negative, to wit, that her husband was not kil......
  • Request a trial to view additional results
7 cases
  • Elder v. Pa. R. Co.
    • United States
    • Superior Court of Pennsylvania
    • 18 Julio 1935
    ...in Philadelphia & R. Ry. Co. v. Polk, 256 U. S. 332, 41 S. Ct. 518, 65 L. Ed. 958, which reversed the Supreme Court of Pennsylvania (266 Pa. 335, 109 A. 627). In the Polk Case, the deceased employee was engaged as one of a crew handling both interstate and intrastate shipments. In reversing......
  • Di Donato v. Philadelphia & Reading Railway Co., 12
    • United States
    • United States State Supreme Court of Pennsylvania
    • 23 Febrero 1920
    ...[266 Pa. 417] 264 Pa. 220), the burden of which rests upon the party alleging it -- here the defendant: Polk v. Philadelphia & R. Ry. Co., 266 Pa. 335. This familiar rule of evidence is especially applicable here, otherwise plaintiff must prove a negative, to wit, that her husband was not k......
  • Peak v. Pa. R. Co.
    • United States
    • Superior Court of Pennsylvania
    • 16 Abril 1936
    ...train. It is important to note that in that case the duties of the employee were not separable. In Philadelphia & R. Ry. Co. v. Polk, 266 Pa. 335, 109 A. 627, our state Supreme Court likewise held that the burden was on the railroad to show that the employee was engaged in interstate transp......
  • Di Donato v. Phila. & R. Ry. Co.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 23 Febrero 1920
    ...Co., Page 417 264 Pa. 220), the burden of which rests upon the party alleging it — here the defendant: Polk v. Philadelphia & R. Ry. Co., 266 Pa. 335. This familiar rule of evidence is especially applicable here, otherwise plaintiff must prove a negative, to wit, that her husband was not ki......
  • Request a trial to view additional results

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