Workmen's compensation — Interstate or intrastate commerce — Section foreman — Duties — Fire in shanty — Evidence.
1. In a workmen's compensation case, in which it appeared that decedent was employed by defendant railroad company as a section foreman; that his duties were to see that the tracks and roadbed, used in interstate transportation, were safe for the passage of trains at all times; that on the day of his death he was to walk track; that before his injury his hours of labor had begun; that he was on the premises of the company and had already walked along a part of his section; that he went to an adjoining shanty, which contained his tools, a desk, and a stove to keep the place warm; and that a fire started shortly afterwards and burned him to death; it was held that there was no competent evidence to sustain a finding that decedent had any duties whatever not of an interstate character or that he was engaged in intrastate transportation at the time of the accident.
2. Attending to the stove or doing anything else that he had a right to do while there did not interrupt the employment in interstate transportation.
3. In such case, the burden was upon claimant to prove that decedent was engaged in intrastate transportation at the time of the accident which resulted in his death.
Argued April 17, 1939.
PER CURIAM, June 27, 1939:
For the reasons so clearly stated by Judge CARR, of the court below, in his dissenting opinion, which will be found in the reporter's statement, we are of opinion that the judgment on the award in favor of the claimant must be reversed and judgment entered for the defendant.
See also Elder v. Penna. R.R. Co., 118 Pa. Super. 137, 148, 180 A. 183; Martini v. Director General, 77 Pa. Super. 529, 534; Phila. R. Ry. Co. v. Di Donato, 256 U.S. 327, 329; Bauchspies v. Central R. of N.J., 287 Pa. 590, 135 A. 728; Glunt v. Penna. R.R. Co., 249 Pa. 522, 95 A. 109.
It is so ordered.