a decision of the State Industrial Commission,, denying an award, claimant appeals. Affirmed.

Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ.

Frederick T. Case, of New York City, for appellant.

Fitch & Grant, of New York City (Grant C. Fox, of New York City, of counsel), for respondents.

COCHRANE, J. The deceased employee died as the result of heat prostration on August 1, 1917, after a prolonged period of excessive heat. He was a driver of a brewery wagon, engaged in delivering beer. He began work at 7 o'clock in the morning of the day of his death, and delivered 91 half barrels of beer at 11 places in Flushing, N. Y. About 3 o'clock in the afternoon of that day he was driving the brewery wagon about five miles from the city of New York, when he stopped the horses, alighted from the wagon, and walked around, apparently suffering from the heat. In about 10 minutes he dropped dead, having uttered no word after he alighted from the wagon. The commission finds. that the heat prostration which resulted in death was an accidental injury, which arose in the course of the employment, but that it did not arise out of the employment.

[1] The question is whether the deceased by reason of his employment was subjected to a special and increased hazard not common to the public in general, but because of the particular circumstances under which he was required to work. The principle applicable to such cases is correctly stated by Commissioner Mitchell in Matter of Claim of Hernon v. Holihan, 14 State Department Reports, 597. In that case the employee sustained a sunstroke while working in a close car with very little air. The commissioner said:

"The deceased was required to work on a very hot day in a close car, handling lumber, which required great exertion. This work under these circumstances, therefore, subjected him to a special and increased hazard. The deceased sustained a sunstroke, not by reason of a risk assumed by the public in general, but because of the special circumstances under which he was required to work."

An award was made in that case which was affirmed by this court in 182 App. Div. 126, 169 N. Y. Supp. 705. So, also, in Matter of Claim of Days v. Trimmer & Sons, Inc., 176 App. Div. 124, 162 N. Y. Supp. 603, an award made to the claimant for a frostbite was sustained on the ground that:

"The claimant, by reason of his employment in handling wet coal in the storm, was specially affected by the severity of the weather."

Cases of sunstroke and frostbite, both arising from extreine weather conditions, although of opposite extremes, seem to be

analogous. The distinction between those cases and the present case, made by the commission itself, indicates that the commission is under no misapprehension as to the legal question involved, and that its determination herein is based on its belief that the work in which the deceased was engaged did not contribute to his death.

[2] The facts in this case are undisputed. The question as above enunciated depends on inferences to be drawn from such undisputed facts. Whatever answer the commission gives to the question finds support in the evidence and is binding on this court. Thus in Matter of Claim of Days v. S. Trimmer & Sons, Inc., supra, it was said by this court, speaking through Lyon, J.: "That the injuries arose out of the employment was fairly a question of fact for the determination of the commission, and it was fully justified in finding from the evidence" that the claimant. was specially affected by the weather conditions.

He further said, in reviewing cases from other jurisdictions, where it was held that frostbites did not arise out of the employment:

"In those cases the court found that the man was not specially affected by the severity of the weather by reason of his employment, and the appellate court held that such finding was one of fact and binding."

In the Days Case, as here, the evidence was uncontradicted; but the proper inference to be drawn from such uncontradicted evidence was held to be a question of fact.

"Where conflicting inferences from the same facts are possible, different triers of facts may draw different conclusions, and the weight of evidence is not for consideration in this court.". Matter of Claim of Heitz v. Ruppert, 218 N. Y. 148, at page 153, 112 N. E. 750, at page 751 (L. R. A. 1917A, 344).

[3, 4] It was a question of fact for the commission to determine whether the deceased was specially affected by the severity of the heat by reason of his employment. Although earlier in the day his duties required him to unload a large number of half barrels of beer, he had completed that work and was returning to the brewery. It does not appear how long an interval of time elapsed between the unloading the beer and his death. He was accompanied by an assistant, who presumably exerted himself as much as the deceased, and who testified that he did not work harder on the hot days than on other days, and that he was not specially affected by the heat, except that it caused him to perspire. There was a large umbrella on the wagon as a protection from the rays of the sun. Apparently the deceased was returning from Flushing to New York, and while riding along the highway in the ordinary manner he was overcome by the heat. From all the circumstances, the commission was justified in drawing the inference that the heat prostration

which caused his death did not arise "out of" his employment, and that conclusion is not reviewable.

The decision is therefore affirmed. All concur.

SUPREME COURT OF NEW YORK.

APPELLATE DIVISION, THIRD DEPARTMENT.

GUIDA
บ.

PENNSYLVANIA R. CO.*

COMMERCE-INJURY IN "INTERSTATE COMMERCE”—FEDERAL EMPLOYERS' LIABILITY ACT.

Laborer, fatally injured while cleaning soot from boiler in railroad's power plant, generating electricity for operation of trains on one railroad wholly in New York and on another partly in New York and partly in New Jersey, was engaged in "interstate commerce," within federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), so that the Industrial Commission had no jurisdiction to make award.

(For other cases, see Commerce, Dec. Dig. § 27[5].)

(For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.)

John M. Kellogg, P. J., dissenting.

Appeal from State Industrial Commission.

Claim for funeral expenses by Edward Guida under the Workmen's Compensation Law (Consol. Laws, c. 67) on account of the death of Michael Panella, opposed by the Pennsylvania Railroad Company, employer and self-insurer. From an award by the State Industrial Commission, the employer appeals. Reversed, and claim dismissed.

Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ.

Burlingham, Montgomery & Beecher, of New York City (Ray Rood Allen and Samuel C. Coleman, both of New York City, of counsel), for appellant.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

sion.

Robert W. Bonynge, of New York City, for State Industrial Commis

LYON, J. The appellant bases its appeal upon the contention. that at the time the deceased sustained the injuries which resulted in his death he was engaged in interstate commerce, and hence * Decision rendered, July 1, 1918. 171 N. Y. Supp. 285.

Vol. 1-Comp. 45.

the State Industrial Commission was without jurisdiction to make the award.

(

The appellant owned and operated a motive power electric plant at Long Island Station, Long Island City, N. Y., by which it operated the Long Island Railroad, situated wholly within the state of New York, and the portion of the Pennsylvania Railroad system from Sunnyside Yard, on Long Island, to Manhattan Transfer, in New Jersey. At such plant it maintained 36 boilers, in which it produced the steam necessary to operate the electricity producing machinery. The electrical power was supplied to both railroads through a common source, furnishing an indivisible supply to operate both roads, and was used in both interstate and intrastate commerce. The appellant was also engaged in repairing its plant, its stationary engines, boilers, dynamos, appliances, and transmission lines. Not all the 36 boilers were in use at any one time, but it was customary and necessary, after a boiler had been in operation for 6 or 8 weeks, to shut it down for the purpose of removing the soot from it, and making any needed repairs.

In May, 1917, Michael Panella, the deceased, was a common laborer in the boiler room of appellant's said plant. At that time 12 of the 36 boilers had been temporarily withdrawn from active service, in order that they might be freed of soot and repaired. Steam was in the meantime being furnished by the remaining 24 boilers, which were sufficient for that purpose. While the deceased was necessarily within one of the idle boilers, engaged in the regular course of his employment of removing soot from the boiler, hot soot fell upon him, and so badly burned him as to cause his death. The State Industrial Commission, holding as a conclusion of fact that at the time-of the accident the deceased was not engaged in interstate commerce, and as a ruling of law that the claim came within the state Workmen's Compensation Law, made the award appealed from of $100 on account of burial expenses. Any claim for compensation on account of the dependency of the widow and children of, the deceased, who were alien nonresidents, was held in abeyance pending the presentation of a claim in their behalf.

The vital question presented is whether, at the time of sustaining the injury, the deceased was engaged in interstate commerce, within the meaning of the federal Employers' Liability Act. That statute speaks of interstate commerce, not in a technical legal sense, but in a practical one, making the true test of such employment whether the employee at the time of the injury was engaged in interstate transportation, or in a work so closely related to it as to be practically a part of it. Shanks v. Del., Lack. & West. R. R. Co., 239, U. S. 556, 558, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797. In Pederson v. Del., Lack. & West. R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed.

1125, Ann. Cas. 1914C, 153, it was held that a bridge was a necessary instrumentality of commerce, and that a person engaged in taking to the bridge belts with which to repair it was engaged in interstate commerce. In N. Y. Cent. R. R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, Ann. Cas. 1917D, 1139, it was held that a section hand who lost his eye by being struck with a pebble while tamping a cross-tie was engaged in interstate commerce. The track, consisting of the rails and ties, and was an instrumentality of commerce. In Grybowski v. Erie R. R., 88 N. J. Law, 1, 95 Atl. 764 (affirmed 89 N. J. Law, 361, 98 Atl. 1085), it was held that an employee engaged in cleaning out an ash pit under the track, into which locomotives employed in both interstate and intrastate commerce dumped ashes, was engaged in interstate commerce, as the keeping of the ashpit clean was required by both kinds of commerce. In the case at bar, the boiler plant was an instrumentality of commerce, along with the dynamos which generated the electric current and the engines by means of which the current was made of service. The work of deceased related to the maintenance of an instrumentality permanently devoted to carrying on interstate commerce. In this respect the present case differs radically from several of those cited by the respondent. The 12 boilers which were temporarily idle were an indispensable part of the boiler plant, and it was not only by freeing them of soot, making the necessary repairs, which could be made only when the boilers had been temporarily withdrawn from active service, later substituting them for 12 boilers then in use, that the efficiency of the plant could be maintained, and the transportation system operated. Freeing the boilers of soot was as necessary to make them effective as making needed repairs. The deceased was therefore injured while engaged in restoring to efficiency one of the units of an indispensable instrumentality of interstate commerce. He was employed in interstate commerce equally with the employee who was carrying bolts with which to repair the bridge and the employee who was tamping the ties. At these times neither the bridge nor the track at the place of injury was in actual use by interstate trains. Like the boiler, they were, at the places of injury, instrumentalities of interstate commerce, and not less such during temporary periods when they were out of actual use.

The fact that the appellant was also operating intrastate as well as interstate trains has no bearing upon the question at issue. This was expressly held in both the Pedersen and Winfield Cases. In fact, in the former case the injury was inflicted by an intrastate train. Keeping the boiler in effective condition was required equally in interstate and intrastate commerce. In Erie R. Co. v. Windfield, 244 U. S. 170, 173, 37 Sup. Ct. 556, 61 L. Ed. 1173, it was held that an engineer who had been at work during