Polk v. Philadelphia & Reading Railway Co. , 266 Pa. 335 ( 1920 )

Per Curiam,

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 thé 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.