Salkeld v. Pennsylvania Railroad Co.

• Decision Date: 04 October 1940
• Docket Number: 246-1940
• Citation: 142 Pa.Super. 78,15 A.2d 501
• Parties: Salkeld v. Pennsylvania Railroad Company, Appellant
• Court: Pennsylvania Superior Court

15 A.2d 501

142 Pa.Super. 78

Salkeld v. Pennsylvania Railroad Company, Appellant

No. 246-1940

Superior Court of Pennsylvania

October 4, 1940

Argued April 23, 1940.

Appeal from judgment of C. P. Allegheny Co., July T., 1939, No 1805, in case of Nora F. Salkeld v. Pennsylvania Railroad Company.

Appeal by defendant from award of Workmen's Compensation Board.

The facts are stated in the opinion of the Superior Court.

Appeal dismissed and judgment entered for claimant, before Richardson, Thompson and Marshall, JJ., opinion by Marshall J. Defendant appealed.

Errors assigned related to the action of the court below in dismissing defendant's exceptions.

Judgment affirmed.

John R Bredin, with him Dalzell, McFall & Pringle, for appellant.

J. Thomas Hoffman, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, Rhodes and Hirt, JJ.

OPINION

Rhodes, J.

Claimant filed a claim petition for compensation for the death of her husband in the course of his employment with defendant on December 18, 1936. The testimony in support thereof was virtually undisputed. The defense made to the claim was that deceased was engaged in interstate transportation at the time of his death, so that claimant's remedy was to be found under the Federal Employers' Liability Act, exclusively. The referee made an award in claimant's favor. The Workmen's Compensation Board affirmed the findings of fact, conclusions of law, and award of the referee. Defendant's appeal to the court of common pleas was dismissed, and judgment was entered on the award in favor of claimant. Defendant has appealed from the judgment, and has submitted six assignments of error, all relating to the single question of the character of deceased's employment at the time of his death.

The testimony discloses that deceased was a brakeman, who for six months prior to his death had been regularly assigned to a freight train described as P. T. 21. This train was made up daily in the Pitcairn yards of appellant company, and consisted of cars to be delivered at various points between Pitcairn and 43d Street in the city of Pittsburgh. The train never left this state, but the cars of which it ultimately consisted on the night in question contained less than carload shipments from points of origin outside Pennsylvania. Deceased was regularly assigned to the front end of the train, and on the evening of December 18, 1936, registered at the west end of the yard at 7:05 P. M. He then went to the caboose which was to accompany train P. T. 21, changed his clothes, lighted his lantern, and left. Two or three minutes later he was found dead under the second car forward from the caboose. There had been four cars coupled to the caboose before deceased arrived, and five more were added between the time he left the caboose and the accident. His first duty was to have been the coupling of the engine to the head of the train after it was made up. The engine, at the time of deceased's death, had not arrived. The making up of the train was the task of the shifting crew, not the train crew, and the precise composition of the train would not have been finally determined until the manifest was completed, which had not been done at the time in as much as the conductor was at the yard office working on it. The manifest was the document identifying the individual cars which would compose the train as it left the yard for its destination. When this train finally left the Pitcairn yards it contained eleven cars.

From the circumstances described in the testimony which we have summarized, it is plain that the instrumentality of transportation to which deceased was assigned when made up was, at the time of his death, in the process of being assembled, and could not have assumed its final character, whether interstate or exclusively intrastate, until that process was completed. Deceased was not among that class whose duties are so indiscriminately concerned with both classes of service as to be inseparable, and therefore interstate, as in Mason v. Reading Co., 129 Pa.Super. 289, 195 A. 754; Sigler v. Pittsburgh & Lake Erie Railroad Co., 127 Pa.Super. 458, 193 A. 362; Velia v. Reading Co., 124 Pa.Super. 199, 187 A. 495.

In Mease et al. v. Reading Co., 126 Pa.Super. 436 ^[1] at page 440, 191 A. 402, at page 404, in an opinion by Judge Parker, we said: "At the outset it is to be noted that a member of a shifting crew does not ordinarily belong to that class of employees of railroad carriers whose service is so related to an instrumentality of transportation as to be practically inseparable from the use of that instrumentality in moving traffic, such as a flagman at a crossing over which interstate and intrastate traffic passes (Phila. & Reading R. Co. v. Di Donato, 256 U.S. 327, 41 S.Ct. 516, 65 L.Ed. 955), or one engaged in repairing tracks or bridges (Pedersen v. D., L. & W. R. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125), or a railroad policeman (Elder v. Penna. R. R. Co., 118 Pa.Super. 137, 180 A. 183). A fireman...