"Engine 88 was a passenger engine, running either between Florence and Wilmington, or Florence and Columbia." The following questions and answers appear in the testimony of T. J. Carter, assistant roundhouse foreman : "Q. What sort of service was 88 in at that time? A. Passenger service, between Florence or Charleston, Columbia, and Wilmington. Q. And where did it come from that morning? A. Came from Columbia. Q. And stopped at Florence? A. No, sir; went to Wilmington; the engine stopped at Florence, that engine; the train went on to Wilmington 20 minutes after arrival at Florence. Q. But I am talking about the engine that this new bolt went on. A. That engine stopped at Florence. Q. That was the end of that engine's run? A. Yes, sir; end of the engine's run. Q. That engine ran between Columbia and Florence? A. Columbia, Florence and Charleston. Q. And the balance of the train was pulled on by another engine to another place? A. Yes, sir. Q. But this particular engine ran between Columbia. S. C., and Florence, S. C.? A. Yes, sir. Q. And that was the end of the engine's run when it got to Florence? A. Yes, sir. Q. Upon which this bolt you are talking about was put on? A. Yes, sir. Q. And then that engine lay there all day, did it not? A. Lay there from 8:45, about 9 o'clock. when it came into the shop, until about 5:30 in the evening, when we sent the engine out. Q. And then came back to Columbia? A. Yes, sir. Court: Q. Those are interchangeable for engines of the same class? A. Yes, sir. Q. You say the terminal points of this engine were Columbia and Florence? A. Between Charleston, Columbia, and Florence, and sometimes we used it to Wilmington; it was not any special terminal, but that is where she is supposed to run." There was not a particle of evidence to show that when the engine was detached from the Columbia-Wilmington train. the railroad authorities had any formed intention as to the next use to be made of it. The engine was not interrupted in an interstate haul, to be repaired and continued on its trip. At the time of the repairs, it was not engaged in any business, either state or interstate. After being detached for repairs, its next work. so far as the evidence shows. might have been between Columbia and Charleston, or Wilmington and Columbia, with the probabilities in favor of the Columbia and Charleston trip, rather than the Wilmington and Columbia trip, for the testimony was that it was more often used on the intrastate trip. It was one of a class of engines interchangeable for other engines of the same class for any of these trips. In short, at the time of the accident its office as an instrumentality of interstate commerce had ceased, and it was entirely uncertain, at the time of the accident and the repair of the bolt, whether it would be next used in interstate commerce or intrastate commerce. It is unnecessary to enter into an analysis of the many cases on the subject, and the refined distinctions necessarily made between interstate and intrastate commerce. The facts of this case bring it clearly under Minn. & St. L. R. Co. v. Winters, 242 U. S. 353, 37 Sup. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54. In that case the court says: * * * "The agreed statement is embraced in a few words. The plaintiff was making repairs upon an engine. This engine ‘had been used in the hauling of freight trains over defendant's line, which freight trains hauled both intrastate and interstate commerce, and * * it was so used after the plaintiff's injury.' The last time before the injury on which the engine, was used was on October 18th when it pulled a freight train into Marshalltown, and it was used again on October 21st, after the accident, to pull a freight train out from the same place. That is all that we have, and is not sufficient to bring the case under the act. This is not like the matter of repairs upon a road permanently devoted to commerce among the states. An engine as such is not permanently devoted to any kind of traffic. and it does not appear that this engine was destined especially to anything more definite than such business as it might be needed for. It was not interrupted in an interstate haul to be repaired and go on. It simply had finished some interstate business and had not yet begun upon any other. Its next work, so far as appears, might be interstate or confined to Iowa. as it should happen. At the moment it was not engaged in either. Its character as an instrument of commerce depended on its employment at the time, not upon remote probabilities or upon accidental later events." The utmost that the defendant could claim was submission to the jury of the question whether the plaintiff was employed in repairing part of the engine engaged in interstate commerce. The conclusion of the jury that it was not so engaged was well supported by the evidence above quoted. I think the judgment should be affirmed. SUPREME COURT OF CALIFORNIA. SOUTHERN PAC. CO. V. INDUSTRIAL ACCIDENT COMMISSION. (S. F. 8803.)* COMMERCE-FEDERAL EMPLOYERS' LIABILITY ACT-"INTERSTATE COMMERCE." A member of a repair gang employed by a railroad company to make light repairs upon cars side-tracked in a yard used for interstate and intrastate commerce, killed while passing from one car to the other, was engaged in "interstate commerce" within the federal Employers' Liability Act (U. S. Comp. St. 1916, §§ 8657-8665). (For other cases, see Commerce, Dec. Dig. § 27[8].) (For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.) In Bank. Proceedings under the Workmen's Compensation Act by the widow and children of James Morton, deceased, to obtain compensation for decedent's death, opposed by the Southern Pacific Company, employer. Compensation was awarded by the Industrial Accident Commission, and the employer applies for a writ of review. Award annulled. Henley C. Booth, of San Francisco, for petitioner. WILBUR, J. The petitioner seeks to review an award of the respondent Industrial Accident Commission in favor of the widow and children of James Morton, deceased, made under the terms of the Workmen's Compensation Act of California (St. 1913, p. 279). The only question here involved is whether or not the respondent has jurisdiction to make an award, or whether the liability of the petitioner is to be determined by * Decision rendered, Sept. 30, 1918. 175 Pac. Rep. 453. the courts in accordance with the provisions of the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]). This depends upon whether the deceased when killed was engaged in interstate commerce. The deceased was a member of the repair gang employed by petitioner to make light repairs upon cars side-tracked and detained upon side tracks reserved respectively for inbound or outbound freight traffic in the Bay Shore Freight Yards of petitioner. Such detention on said tracks was in part for the purpose of inspecting the cars to ascertain defects therein and to make such light repairs thereof as were thereby found necessary, in order that the cars might proceed to their destination. "Light repairs" were made upon the cars without moving them from their positions in the "cuts" or "drags" on the side tracks, but "heavy repairs" were made by cutting out said cars and transferring them to tracks specially devoted to repair work. About 40 per cent of the business of the yard at that time was interstate business, the balance intrastate. The tracks upon which the cars repaired by the deceased and his fellow laborers were standing were part of the switching tracks in the freight yards essential to the movement of interstate as well as the intrastate commerce. The system of light repairs inaugurated in the yards in question was for the purpose of facilitating the movement of trains to and from the yard and was distinct from the heavy repair jobs which required the cars to be cut out of the "cuts" or "drags" and placed on special side tracks arranged for such repair work. During the day the light repair men doing "light repairs" would repair on an average 100 cars. Decedent's duties required him to pass from one car to another and one track to another seeking out the cars which were tagged by the inspectors as requiring light repairs and finding them to make such repairs. Decedent and his assistant had released the air on a string of cars, some containing interestate and others intrastate freight, and were proceeding across the yard for the purpose of making light repairs upon other cars. While the deceased was crossing one of the switches, he was killed by an empty freight car being suddenly moved upon him because struck by another car "kicked" upon the track by a switch engine It is not known whether the next car to be repaired by deceased would be loaded with interstate or intrastate commerce, as that would depend entirely upon which sort of a car they happened to first discover tagged for light repairs. Whether or not deceased was engaged in interstate commerce "depends upon whether the series of acts that he had last performed was properly to be regarded as a succession of separate tasks or as a single and indivisible task," as was said by the Supreme Court of the United States in Erie R. Co. v. Welsh, 242 U. S. 303, 37 Sup. Ct. 116, 61 L. Ed. 319, in passing upon the case of a yard conductor injured while going to report to the yard master for further orders. "The true test," it is there held, "is the nature of the work being done at the time of the injury, and the mere expectation that plaintiff would presently be called upon to perform a task in interstate commerce is not sufficient to bring the case within the act." The deceased and his assistant would work on 25 cars daily, and in so doing move from place to place in the yards. Some cars repaired were filled with interstate and others with intrastate freight. The character of employment in which decedent was engaged seems to approach more nearly to that of a switch engineer, as a "single and indivisible task," than to that of a "heavy repair" man, whose work might be properly characterized as a "succession of separate tasks." Such an engineer was killed while leaving the carrier's yard, and it was held that he then was engaged in interstate commerce. "In leaving the carrier's yard at the close of his day's work, the deceased was but discharging a duty of his employment. See North Carolina R. Co. v. Zachary, 232 U. S. 248, 269 [34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159]. Like his trip through the yard to his engine in the morning, it was a necessary incident of his day's work and partook of the character of that work as a whole, for it was no more an incident of one part than of another. His day's work was in both interstate and intrastate commerce, and so when he was leaving the yard at the time of the injury his employment was in both. That he was employed in interstate commerce is therefore plain, and that his employment also extended to intrastate commerce is for present purposes of no importance." Erie R. Co. v. Winfield, 244 U. S. 170, 173, 37 Sup. Ct. 556, 557, 61 L. Ed. 1057, Ann. Cas. 1918B, 652. By the same process of reasoning the decedent, whose general employment was to repair cars containing interstate and intrastate freight in the yards of the petitioner, was employed in interstate commerce while passing through the yard from one such car to another. In considering this question it is also proper to bear in mind the requirements of the federal Safety Appliance Acts (Act Cong. March 2, 1893, c. 196, 27 Stat. 531; Act Cong. March 2, 1903, c. 976, 32 Stat. 943; Act Cong. April 14, 1910, c. 160, 36 Stat. 298 [U. S. Comp. St. 1916, §§ 8605-8615, 8617-8619, 8621-8623]) in regard to the inspection and the care of cars on railways engaged in interstate commerce. The inspection and repair service of the deceased was required by such statute and was therefore made an essential part of the movement of interstate commerce and the decedent was engaged in performing this work upon cars brought to a standstill partly for that purpose. We conclude therefore that the deceased was engaged in interstate commerce when killed. The award of the commisison is annulled. We concur: Angellotti, C. J.; Melvin, J.; Shaw, J.; Sloss, J.; Lorigan, J.; Richards, Judge pro tem. SUPREME COURT OF ILLINOIS. CHICAGO GREAT WESTERN R. CO. ย. INDUSTRIAL COMMISSION OF ILLINOIS et al. (No. 12074.)* 1. MASTER AND SERVANT - WORKMEN'S COMPENSATION CASUAL EMPLOYMENT. The character of the contract of employment, as to whether it was casual or not, was fixed by the contract of hiring. (For other cases, see Master and Servant, Dec. Dig. § 362.) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION BURDEN OF PROOF. In workmen's compensation proceedings, the burden of proving the employment, and the injury, is upon claimant. (For other cases, see Master and Servant, Dec. Dig. § 403.) 3. MASTER AND SERVANT — WOKKMEN'S COMPENSATION. "CASUAL EMPLOYMENT.” A structural ironworker, who was sent from union headquarters, together with three other members, to complete a job requiring only three or * Decision rendered, Oct. 21, 1918. 120 N. E. Rep. 508. four days' work, and who was employed by the railroad for the particular job only, was engaged in "casual employment" within Workmen's Compensation Act; employment being casual when workmen are employed only occasionally, irregularly, and incidentally. (For other cases, see Master and Servant, Dec. Dig. § 362.) Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. Proceedings under the Workmen's Compensatoin Act by the Standard Trust & Savings Bank, administrator, for compensation for the death of Christ Anderson, opposed by the Chicago Great Western Railroad Company, employer. The award of the Industrial Board was affirmed by circuit court on certiorari, and the circuit judge having certified that the case was one to be heard by the Supreme Court, the employer brings error. Reversed. Winston, Strawn & Shaw, of Chicago (Ralph M. Shaw, Charles J. McFadden, Silas H. Strawn, and John D. Black, all of Chicago, of counsel), for plaintiff in error. Frederick A. Brown and Irving W. Baker, both of Chicago, for defendant in error. CARTER, J. Christ Anderson filed an application with the Industrial Board on April 10, 1917, for adjustment of a claim against the plaintiff in error railroad company for injuries alleged to have been sustained by him while in the employ of that company, on March 21, 1917, by falling or being knocked from a swinging scaffold. Evidence was heard by an arbitrator, who found in favor of the applicant, and an award of damages was made. June 20, 1917, after the application was filed with the Industrial Board, Anderson died, and the Standard Trust & Savings Bank was appointed administrator, in whose name the subsequent proceedings were prosecuted. After the finding by the arbitrator, on petition for review the Industrial Board found in favor of the administrator and awarded weekly payments aggregating $3,500. The circuit court on certiorari affirmed the award of the Industrial Board, and, the circuit judge having certified that the case was one which should be heard by this court, it was brought here by writ of error. The accident occurred near the corner of Polk and Franklin streets, in Chicago. Polk street runs east and west and crosses Franklin street at right angles by means of a viaduct. About 45 feet northwest of the viaduct is plaintiff in error's Harrison street freight house. Previous to March 21, 1917, plaintiff in error began to build a drive or runway from this viaduct to the second floor of the freight house, then under process of construction. In building this runway it was necessary that certain structural ironworkers' services be used. Regular men employed by the railroad began the work; but after a conference with the business agent of the Structural Ironworkers' Union four union men from the headquarters of said union were sent over to continue the work, Christ Anderson being one of the four, and one of them, Carmody, being put in charge of the work as foreman. This runway appears to have been a part of the general scheme for the freight house that was being built, so that the WashburnCrosby Company could drive from Polk street to and from the second floor of the freight house with loads of flour. On the day of the accident, Anderson was working on said runway when a horse and wagon being driven beneath the viaduct by an employee of the Heco Envelope Company struck the scaffold, causing Anderson to fall 12 or 14 feet to the pavement and to receive injuries from which he died about 13 weeks after. The details of the accident or the extent of the injuries are not in dispute. The only question raised on this hearing is whether or not the employment of the deceased was casual, and therefore whether or not he |