Claim of Kinsella v. New York Central Railroad

186 A.D. 856, 175 N.Y.S. 363, 1919 N.Y. App. Div. LEXIS 6462

Opinion

H. T. Kellogg, J.:

The deceased was an employee of the New York Central Railroad Company. He was engagéd in cleaning a Seaboard Air Line car standing on a track in a freight yard of his employer at Canandaigua, N. Y.,. when his clothes caught fire and he received such burns that he died. The car in question had recently made a journey from Brooklet, Oa., to Amsterdam, N. Y., with a cargo of melons. Having been unloaded, it was billed out of Amsterdam as an empty, on a home route card via Canandaigua, to Potomac Yard, Va. It arrived at Canandaigua on July 20, 1915, and there stood on track awaiting delivery to the Pennsylvania Railroad Company. It was during this temporary suspension of its journey that the accident occurred. On the day following the accident it was picked up by the Pennsylvania Railroad Company, and continued on its travels, homeward bound beyond the limits of the State. The car was making an interstate journey, and the deceased who cleaned it was at the time engaged in interstate commerce. (Delk v. St. Louis & San Francisco R. R., 220 U. S. 580; North Carolina Railroad Co. v. Zachary, 232 id. 248; Chicago, Rock Island Railway v. Wright, 239 id. 548.) Therefore, no award for this accident should have been made.

The award should be reversed and the claim dismissed.

All concurred, except John M. Kellogg, P. J., dissenting.

Award reversed and claim dismissed.