Philadelphia & R. Ry. Co. v. Bartsch

• Decision Date: 29 December 1925
• Docket Number: No. 3320.,3320.
• Citation: 9 F.2d 858
• Parties: PHILADELPHIA & R. RY. CO. v. BARTSCH.
• Court: U.S. Court of Appeals — Third Circuit

9 F.2d 858 (1925)

PHILADELPHIA & R. RY. CO. v. BARTSCH.

No. 3320.

Circuit Court of Appeals, Third Circuit.

December 29, 1925.

Edward L. Katzenbach and Louis Rudner, both of Trenton, N. J., for plaintiff in error.

Ralph W. Botham, of New York City (Wilbur A. Heisley, of Newark, N. J., of counsel), for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

This suit was brought under the Federal Employers' Liability Act (35 Stat. 65; Comp. St. §§ 8657-8665), to recover damages for the loss sustained by the widow and children of John J. Bartsch arising from his death when in the employ of the Philadelphia & Reading Railway Company. The plaintiff had a verdict and the case is here on the defendant's writ of error. As the judgment must be reversed, we shall address our discussion to those matters in which error was involved at the first trial and which, inevitably, will arise and call for rulings by the court at the next trial.

The railroad yards at Reading, Pennsylvania, form a triangle. Olney Street Yard, Windsor Street and Fifth Street Yard are its points. Freight trains bound for the Fifth Street Yard pull out of the Olney Street Yard and proceed in a northerly direction to Windsor Street where there is a Hall signal — an overhead signal system. There they stop and await signals. On their next movement they draw forward a little and then back in a westerly direction on a crossover track to the Fifth Street Yard, thus traversing two sides and touching the three points of the triangle. The Olney Street and Fifth Street Yards are connected by a platform intersected by tracks. The distance from one yard to the other along the platform — the base of the triangle — is between six and seven hundred feet. By walking over the platform a man may cross in about three minutes but the described train movement along the other two sides of the triangle takes about fifteen minutes.

On the day in question a draft of twenty-six loaded cars pulled out of the Olney Street Yard bound for the Fifth Street Yard, there to be broken up and classified. The draft was drawn by two engines: No. 1149 and No. 1458. It was in charge of the crew attached to the former; Bartsch was a brakeman of the crew attached to the latter. Though a member of this crew, his principal duty was at the Olney Street Yard and consisted in checking up the yard and reporting traffic room to the yardmaster. The draft stopped at the Hall signal. It then pulled ahead preliminary to its intended rearward movement on the crossover to the Fifth Street Yard. When it was in motion, Bartsch, with a bunch of train tickets in his hand, boarded the last car — a box car. He had climbed to the top and was in the act of assuming an erect position and walking along the center of the car when the train, on signal, came to a stop. Bartsch, losing his balance, fell and was killed.

The trouble in this case, we think, arose from the pleading, from a seeming change of position by the plaintiff at a critical stage of the trial, and, in consequence, from the very natural difficulty the learned trial court had in determining the true issues. The negligence charged against the defendant is twofold: First, a sudden stop which caused a violent jolt to the car on which Bartsch was standing; and second, the operation of the draft without the air-hose connecting with the brakes of its cars being coupled. On the second issue the plaintiff's case was tried and evidence admitted as though the negligence were a violation of the Safety Appliance Act (Comp. St. §§ 8605-8612). Near the close, however, counsel for the plaintiff stated, in reply to interrogation by the court, that the action was based not on the Safety Appliance Act but on the Federal Employers' Liability Act and that the charge of negligence as to the defendant's movement of cars with uncoupled air-hose was the "common law negligence" in that regard. In its charge the trial court did not instruct the jury on the negligence of moving the draft with air-hose uncoupled but limited its instructions to negligence in the "sudden stopping and jolting of the train" without reference to the cause.

If the movement of the draft with air brakes uncontrolled was negligence at common law there was no evidence tending to prove it and the court was right in not submitting that issue to the jury. But if such a movement was negligence because a violation of the Safety Appliance Act, that issue should have been submitted with proper instructions. As we read the complaint, the plaintiff (whether intentionally or not) "pleaded" the statute, that is, without "citing" or "reciting" the statute, she stated facts which, if found by the jury, brought the case within it. Having thus pleaded the statute and introduced evidence to sustain the pleading, there devolved upon the court the duty to submit to the jury the issue of fact thus raised. That issue, obviously, was the character of the draft and of its movement.

The Safety Appliance Act (27 Stat. 531) provides in regard to brakes that, "It shall be unlawful for any common carrier engaged in interstate commerce * * * to run any train * * * that has not a sufficient...