Summary
In O'Brien v. Pennsylvania R.R. Co. (187 App. Div. 839) the question was whether the employee was engaged in interstate commerce.
Summary of this case from Riedel v. Mallory Steamship Co.Opinion
May 7, 1919.
Burlingham, Veeder, Masten Fearey [ Ray Rood Allen and Samuel C. Coleman of counsel], for the appellant.
Charles D. Newton, Attorney-General, and Robert L. Bonynge, counsel for State Industrial Commission [ E.C. Aiken, Deputy Attorney-General, of counsel], for the respondents.
The deceased was employed by appellant as a watchman at piers 27, 28 and 29, North river, New York city. These piers were maintained by the appellant for the receipt and delivery of freight from cars ferried across the river upon floats from points in the State of New Jersey. In the rear of the piers, running the whole length thereof, was an open space on West street commonly known as the "farm." Overflow produce arriving at the piers was placed upon the farm, there to await removal by consignees. The deceased was engaged in acting as watchman for a shipment of potatoes in barrels from the State of Florida, which had arrived at the piers, and had been placed upon the farm, when he was run down by a motor truck and killed. The consignee was entitled to forty-eight hours' notice before removing the consignment. Before this time had elapsed, and before the consignee had taken possession of the shipment or paid the freight charges thereon, the accident happened. Within well-settled principles of law transportation of the potatoes, which was interstate, had not ended when the accident occurred. ( McNeill v. Southern Railway Co., 202 U.S. 543; Cleveland St. Louis Railway v. Dettlebach, 239 id. 588; Southern Railway v. Prescott, 240 id. 632; Jennings v. Clyde Steamship Co., 148 App. Div. 615; Chalmers v. New York Central R.R. Co., 175 id. 239.) The case of Chicago, Burlington Quincy R.R. v. Harrington ( 241 U.S. 177) is not in disagreement with the cases cited. In that case an employee was engaged in moving coal from the storage tracks of the consignee to the coal chutes of the consignee, the coal being in possession of the consignee at all times during the work which was being performed by the employee at the time of his injury. The deceased in this case, having been engaged at the time of the accident in guarding an interstate shipment, the transportation of which had not ceased, an award could not properly be made.
The award is reversed and the claim dismissed.
All concurred.
Award reversed and claim dismissed.