
    Before State Workmen’s Compensation Commission, Respondent. In the Matter of the Claim of Mary Fairchild, Widow, Elva Fairchild and Florence Helen Fairchild, Children, Claimants, Respondents, for Compensation to Themselves for the Death of William Fairchild, under the Workmen’s Compensation Law, v. Pennsylvania Railroad Company, Employer and Self-Insurer, Appellant.
    Third Department,
    November 10, 1915.
    Workmen’s Compensation Law — death of employee of Pennsylvania Railroad Company at New York Terminal — uncoupling local train — when decedent not engaged in interstate commerce — appeal—finding of Commission as to earnings of employee.
    A person employed by the Pennsylvania Railroad Company at its terminal in New York city to uncouple cars, who was killed by electricity while uncoupling a local Long Island train after it had arrived at said terminal, was not at the time engaged in interstate commerce, and those dependent upon him are entitled to compensation under the State statute if none of the cars ran outside the State or carried any except local passengers. And this even though they carried baggage destined for another State and the Long Island Railroad Company occasionally sold tickets for points without the State.
    A determination of the Workmen’s Compensation Commission as to the earnings of a claimant is a conclusion of fact which cannot be reviewed on appeal if there be any evidence to support it.
    Appeal by Pennsylvania Railroad Company from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 12th day of January, 1915.
    
      Burlingham, Montgomery & Beecher [Ray Rood Allen of counsel], for the appellant.
    
      Egburt E. Woodbury, Attorney-General, and Charles W. Gould [Jeremiah F. Connor, counsel for the Workmen’s Compensation Commission], for the respondents.
   Howard, J.:

This is a death claim. In some parts of the record William Fairchild, the deceased, is styled a brakeman, and in other places he is called a switchman. But whatever he may have been styled he was in the employ of the Pennsylvania Railroad Company at its terminal in New York city, and as such was, on August 25, 1914, attempting to uncouple two cars from a train when there was some sort of an explosion of electricity, which is not very well explained and is not material, and Fair-child was killed. The train which the deceased was breaking apart was a local Long Island train. It was train No. 423 and had just come in from Port Washington, L. I. None of the cars of the train ran outside the State, but two of the cars were afterward used that day to carry baggage which was transferred to them from New Jersey. The Pennsylvania Railroad Company had such arrangements with the Long Island Railroad Company that although the deceased worked exclusively shifting cars for the Long Island Railroad Company, he was paid by the Pennsylvania Railroad Company. Tickets are sold by the Long Island Railroad Company for points outside the State of New York and tickets purchased outside of the State are honored on that road; but there is no proof that train No. 423 carried any except local passengers. And, although the Commission has so found, there seems to be no proof that train No. 423 carried “baggage which was destined for another State.” We must assume this to be a fact, however, for the Commission has so found and, under section 20 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), we cannot review its finding. (See, also, Laws of 1915, chap. 167, amdg. said § 20.) No train of the Long-Island railroad ever goes outside the State.

The only point of importance made in this case is that the deceased was engaged in interstate commerce. It seems to us that this point is not well taken. The deceased, the railroad and the trains operated exclusively within this State. The Long Island railroad brought nothing into the State and carried nothing out of the State. Sometimes it carried interstate baggage and interstate passengers. This, perhaps, would be interstate traffic under the ruling in Pacific Coast Ry. Co. v. United States (173 Fed. Rep. 448). The Commission has found that the train which the deceased was breaking up did, in this instance, carry interstate baggage. Except for this finding there would be no question here. But assuming, as we must, that this is true, under our ruling in Matter of Parsons v. D. & H. Co. (167 App. Div. 536) the claimant may, nevertheless, recover. There we said: “ The actual work being performed at the time of the injury determines its character and is the real test whether it is interstate or intrastate work.” Therefore, even if train No. 423 had carried baggage on its trip just ended, destined for another State, that baggage had been unloaded before the accident, and, at the time of the accident, the deceased was breaking-up the train of empty cars preparatory to the formation of a new train. If the actual work being performed at the time of _ the injury is the real test as to whether it was interstate, surely the work being performed by the deceased when he was injured was not interstate for he was uncoupling empty cars on a local railroad, operating always exclusively within this State — a railroad having no interstate characteristic whatever, except when actually engaged in carrying interstate passengers, baggage or freight.

A question is raised as to the amount of the award, the appellant contending that no evidence was presented from which the Commission was authorized to find that the average weekly earnings of the deceased was twenty-four dollars and sixty-four cents. But there was very definite evidence as to the earnings of the deceased during the fourteen months preceding his death, and we must assume that the Commission did its duty and made the computation, which resulted in the sums awarded, according to law; and, at all events, the average weekly wage has been determined as a conclusion of fact and, where there is any evidence to support a conclusion of fact, section 20 forbids us to review.

The award should be affirmed.

Award unanimously affirmed.  