For the prosecutor, Isidor Kalisch.
For the respondent, John A. Hartpence and James R. Laird, Jr.
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. This is a proceeding under the Workmen's Compensation act. Pamph. L. 1911, p. 134. The decisive question is whether prosecutor's decedent, Anthony Rossi, who suffered fatal injuries by accident arising out of and in the course of his employment with the respondent railroad, was, at the time, engaged in commerce intrastate in character. The compensation bureau and the Hudson Common Pleas, on appeal, held that the deceased was then engaged in interstate commerce, and for that reason compensation under the state statute was denied.
These are the essential facts: Respondent, in the conduct of its interstate commerce, maintains, at a point east of the city of Newark, a transfer station designated "Manhattan Transfer." All of its passenger trains bound for the city of New York from the south and west stop at this station. The locomotive is there supplanted by an electric engine, and the train is then taken to its New York up-town station through the Hudson river tunnel. The same course is followed with respect to interstate trains bound from New York to the west and south through the State of New Jersey. The train is taken from the New York station to the transfer by an electric engine, at which point the electric engine is replaced by a locomotive used exclusively for interstate transportation. Some three miles from the transfer, respondent maintains a locomotive servicing station called "Meadow Yards." The steam locomotives, used to haul interstate trains to the transfer, are immediately taken to this service station for refueling and such repairs as may be necessary; and the locomotives needed to haul southbound and westbound trains from the transfer in interstate commerce are supplied from this station. There was a prescribed routine in the handling of such locomotives. After the detachment of the steam locomotive from the train hauled into the transfer, it was taken to the service station, and prepared for its scheduled outgoing interstate run. It was first taken to the inspection pit and there examined for the discovery of needed repairs. It was then moved to the ashpit for the removal of ashes, and from
this point to a coal wharf, running parallel with the inspection pit, for the supply of coal required to generate steam motive power for its outgoing trip. From this point it was moved to a washing stand, and from there to the repair shop, if repairs were needed. If repairs were not required, the position of the locomotive was reversed on a turntable, and it was placed in a nearby storage yard to await departure for the transfer. The deceased was employed at the coal wharf. It was there that the fatal accident occurred. The wharf was an elevated structure. This was the coaling process: The car containing the coal was placed on the wharf, and the locomotive beneath it on a track which paralleled the wharf. The coal was dropped, by force of gravity, through a chute extending from the open hopper pockets of the car to the locomotive tender below. The chute tapered to a narrow outlet at the lower end; and the flow of the coal was controlled by a gate and movable steel apron placed at this point. The chute was approximately ten feet long and between three and four feet wide. It was decedent's duty to take the measures necessary to effect a movement of the coal from the car, through the hopper pockets, into the chute leading to the tender of the waiting locomotive. His assistant, in this instance, one Yawylak, was in charge of the operation of the gate and apron at the lower end. When the customary supply of coal was placed in the tender of the locomotive, the gate was closed, and the apron raised, until another locomotive was moved up for coaling. When the flow was thus cut off, the coal in the chute of necessity remained there. The capacity of the chute was approximately four thousand pounds. It was decedent's duty to maintain a movement of the coal from the car into the chute; and on occasions he was required, when the flow was for any reason impeded, to ascend to the top of the car and free the clogged fuel with the aid of a long iron poker.
These were the circumstances attending the fatal accident: On the afternoon of April 22d, 1932, a steam locomotive that had just hauled an interstate train to the transfer was brought to the yards to be refueled and serviced preparatory to a
scheduled run from the transfer at five-thirty-two P.M., of a New York train bound for Washington, District of Columbia. When it reached the coal wharf, Rossi, who had reported for duty at three P.M., was engaged in the performance of his usual duties on the platform, while Yawylak was in charge of the lower end of the chute. They had refueled ten or twelve locomotives engaged in interstate commerce during the afternoon. When the tender of this locomotive was half filled with coal, the flow through the chute ceased, although the gate was open. Investigation by Yawylak disclosed Rossi prostrate upon the upper platform, suffering from the injuries which resulted in his death the next day. The latter said he had fallen from the top of the car from which coal was being conveyed through the chute into the tender of the locomotive below. In these circumstances, it is an inescapable inference that, at the time of his fatal fall, the deceased was engaged in an effort to dislodge clogged coal in the car so as to start anew the flow into the chute. The performance of this duty required him to ascend to the top of the car.
The burden is upon prosecutor to establish the claimed right to compensation under the state statute, i.e., to show affirmatively that the deceased was engaged in a service not regulated by the Federal Employers' Liability act (45 U.S.C.A., § 51-59); and there is no presumption of this fundamental fact. Lincks v. Erie Railroad Co., 91 N.J.L. 166; Carberry v. Delaware, Lackawanna and Western Railroad Co., 93 Id. 414. And the test of employment in interstate commerce, within the intendment of the federal statute, is this: Was the employe, at the time of the injury, engaged in interstate transportation or in work so closely related to it as to be practically a part of it. The federal act does not speak of interstate commerce in a technical legal sense. Chicago and Northwestern Railroad Co. v. Bolle, 284 U.S. 74; 76 L. Ed. 173; Shanks v. Delaware, Lackawanna and Western Railroad ...