Claim of McGowan v. New York Central Railroad , 39 N.Y.S.2d 533 ( 1942 )

Hill, P. J.

Appeal by the Railroad Company, employer, from an award for total disability made payable to the widow of the claimant. It is contended that the Federal Employers ’ Liability Act (U. S. Code, tit. 45, ch. 2) controls for two reasons: First, that the claimant had “ manifold duties of supervising work upon engines in both classes of commerce ” and second, that the engine upon which he was working when injured had not been withdrawn from its regular work of drawing an interstate train.

The engine was taken from the train at Albany and placed in the Bensselaer shops at about four-thirty o’clock on the morning of the day of the injury, the boiler was leaking, and the fires were dumped to permit inspection and repairs. No leak was found by an outside inspection, and claimant got inside, when, through a defect in some device, hot water and steam were turned on, causing extensive and frightful burns. The following morning the engine, with repairs completed, was assigned to a run, and drew a train from Albany to Harmon.

Claimant said that he was an assistant terminal foreman. There was a general foreman and an assistant, and claimant was one of three or four general assistants. Concerning his supervisory duties, he was asked the following questions: “ Q. Did you have charge of any of those other foremen, part of your work? A. No, sir. I did over the doper foreman or something like that; he came under our jurisdiction. Of course, we couldn’t hire or fire him, but we gave the orders. Q. Lay out their work? A. Well, if we wanted anything done, we told them.”

“ The criterion of applicability of the statute is the employee’s occupation at the time of his injury. * * * Under the circumstances of this case, whether respondent is within the Act must be decided not by reference to the kind of plant in which he worked, or the character of labor he usually performed, but by determining whether the locomotive in question was, at the time of the accident, in use in interstate transportation or had been taken out of it. ” (New York, New Haven & Hartford R. R. Co. v. Bezue, 284 U. S. 415, 420.) “ The question for decision is, was Shanks at the time of the injury employed in interstate commerce within the meaning of the Employers’ Liability Act? What his employment was on other occasions is immaterial, for, as before indicated, the act refers to the service being rendered when the injury was suffered. ’ ’ (Shanks v. D., L. & W. R. R. Co., 239 U. S. 556, 558.) When claimant received his injuries his work and attention were devoted to this single engine. It is only when the work applies generally to both classes of commerce that the Federal Act applies. A watchman in a signal tower (Erie R. R. Co. v. Collins, 253 U. S. 77), a laborer removing snow from tracks (N. T. Central R. R. Co. v. Porter, 249 U. S. 168), or a laborer who kept a track free from grass and weeds and also from obstructing debris (Matter of Quirk v. Erie R. R. Co., 235 N. Y. 405) assist in the general operation of the railroad, and it is impossible to allocate their acts or assign the work of one minute to one class, and the next minute to another class of commerce, however, the authorities do classify the employment when the facts permit.

An engine which had been in the roundhouse two days with the fires drawn, upon which repairs were being made, was not an instrumentality of interstate commerce, and an employee injured in connection therewith was entitled to State compensation. (Matter of Zmuda v. D., L. & W. R. R. Co., 268 N. Y. 659; affg. 243 App. Div. 827.) An employee, injured at eight o’clock in the evening while placing signal lights on an engine that had been out of the service for some time, but which had been reassigned to interstate work to begin at twelve o’clock, was entitled to compensation. (Matter of LaPoint v. N. Y. Central R. R. Co., 254 App. Div. 711.) An employee was in local work while repairing a locomotive ordinarily used both in inter- and intra-state commerce which, on the day of the accident, was taken to the roundhouse at seven-fifteen in the morning, the fire extinguished and the water drawn, with the work completed in time to be returned to its regular run at three in the afternoon. (Matter of White v. Lehigh Valley R. R. Co., 251 App. Div. 507; leave to appeal to the Court of Appeals denied, 276 N. Y. 690.)

The engine upon which this claimant was working had been withdrawn from interstate commerce and his injury was received while he was engaged solely in an employment covered by the New York State Workmen’s Compensation Law (Cons. Laws, ch. 67).