Central Vermont Ry. Co. v. Perry

• Decision Date: 03 March 1926
• Docket Number: No. 1887.,1887.
• Citation: 10 F.2d 132
• Parties: CENTRAL VERMONT RY. CO. v. PERRY.
• Court: U.S. Court of Appeals — First Circuit

10 F.2d 132 (1926)

CENTRAL VERMONT RY. CO. v. PERRY.

No. 1887.

Circuit Court of Appeals, First Circuit.

January 5, 1926.

Rehearing Denied March 3, 1926.

Eri C. Oakes, of Lancaster, N. H. (Shurtleff, Oakes & Hinkley, of Lancaster, N. H., and William R. McFeeters, of St. Albans, Vt., on the brief), for plaintiff in error.

Alexander Murchie, of Concord, N. H. (Murchie & Murchie, of Concord, N. H., and Raymond Trainor, of White River Junction, Vt., on the brief), for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge.

In this action the plaintiff seeks to recover damages for the death of her husband, who was killed in the yard of defendant railway company at White River Junction, Vt., while engaged in work connected with interstate commerce. The action was brought in the federal District Court for New Hampshire, the state and district of which she was a citizen and resident. In her declaration the plaintiff alleged that, at the time of the accident, the defendant company was operating a railroad in Vermont, and as such was a common carrier engaged in interstate commerce; that her intestate was in the employ of the defendant as a brakeman engaged in interstate commerce; and that while so employed he was injured by being thrown beneath the wheels of a locomotive then and there used as a switching engine in interstate commerce — "said injury being caused (1) by reason of the unsuitable, dangerous, and negligent condition of said locomotive; (2) by failure of said defendant to provide a safe work place for said deceased; and (3) by the failure of said defendant to warn and instruct said deceased of the hazards and dangers caused by the negligent condition of said locomotive — by reason of which negligence on the part of said defendant, its officers, agents, and employees, said deceased received injuries as aforesaid, from which, after conscious suffering, he died on the 12th day of May, 1921, whereby under an act of Congress entitled `An act relating to the liability of common carriers by railroad to their employees in certain cases,' approved April 22, 1908, as amended April 5, 1910, also under an act of Congress entitled `An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes,' approved March 2, 1893, as amended April 1, 1896, March 2, 1903, and April 14, 1910, and also under an act of Congress entitled `An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto,' approved February 17, 1911, as amended March 4, 1915, an action has accrued to the plaintiff," etc.

The defendant pleaded a general denial and assumption of risk.

There was a trial by jury, and a verdict for the plaintiff for $7,600. Judgment was entered, and this writ of error prosecuted.

The errors relied upon are that the court erred in denying the defendant's motion for a directed verdict, in its charge to the jury, in the admission of evidence, and in permitting plaintiff's counsel to make certain statements in his closing argument.

The Employers' Liability Act of April 22, 1908, in section 1, provides:

"Every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." Comp. St. § 8657.

And in sections 3 and 4 of the act (Comp. St. §§ 8659, 8660) it is provided that in actions brought under or by virtue of the provisions of the act an employee injured or killed should not be held to have been guilty of contributory negligence or to have assumed the risks of his employment "in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee."

The Safety Appliance Act of March 2, 1893 (Comp. St. §§ 8605-8612), and the Acts of April 1, 1896 (Comp. St. § 8610), March 2, 1903 (Comp. St. §§ 8613-8615), April 14, 1910 (Comp. St. § 8617 et seq.), Feb. 17, 1911, and March 4, 1915 (Comp. St. § 8630 et seq.), supplementing and enlarging the provisions of the Act of March 2, 1893, all of which were enacted "to promote the safety of employees and travelers upon railroads," impose an absolute duty upon common carriers by rail to equip their cars with certain appliances and their locomotives with safe and suitable boilers and appurtenances, and although these provisions of law do not in express terms confer a right of action upon an employee injured because of a failure to comply with such requirements, it has been held that by implication they give him a right of action for personal injuries not resulting in death. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, 36 S. Ct. 482, 60 L. Ed. 874. And where the injury resulted in death and a statute of the state where the accident occurred gave a right of action for death, it has been held that an action under such death statute might be maintained by the deceased employee's representative, relying upon the duty imposed by the Safety Appliance Act and its supplements. St. Louis Iron Mountain Ry. v. Taylor, 210 U. S. 281, 284, 285, 28 S. Ct. 616, 52 L. Ed. 1061; C., B. & Q. Ry. v. United States, 220 U. S. 559, 571, 579, 31 S. Ct. 612, 55 L. Ed. 582; Delk v. St. Louis & San Francisco R. R. Co., 220 U. S. 580, 31 S. Ct. 617, 55 L. Ed. 590; Schlemmer v. Buffalo, Rochester & Pittsburg Ry. Co., 220 U. S. 590, 31 S. Ct. 561, 55 L. Ed. 596. And since the enactment of the Employers' Liability Act of 1908, which gives a right of action for death as well as for personal injuries, it has been held that that act, although it in terms authorizes an action based on negligence only (the failure to exercise the care of the average prudent man), taken in connection with the Safety Appliance Act and its supplements, authorizes an action for personal injuries or death due to the breach of a duty imposed by the Safety Appliance Act and its supplements, irrespective of negligence. Baltimore & Ohio R. R. Co. v. Groeger, 266 U. S. 521, 45 S. Ct. 169, 69 L. Ed. 419; Great Northern R. R. Co. v. Donaldson, 246 U. S. 121, 38 S. Ct. 230, 62 L. Ed. 616, Ann. Cas. 1918C, 581; St. Joseph & Grand Island Ry. Co. v. Moore, 243 U. S. 311, 37 S. Ct. 278, 61 L. Ed. 741; Louisville & Nashville R. R. Co. v. Layton, 243 U. S. 617, 37 S. Ct. 456, 61 L. Ed. 931 (where, apparently, was applied the same construction to the Employers' Liability Act of Georgia and the federal Safety Appliance Act); Southern Ry. Co. v. Crockett, 234 U. S. 725, 34 S. Ct. 897, 58 L. Ed. 1564; Director General of Railroads v. Ronald (C. C. A.) 265 F. 139, 140; Hines v. Smith (C. C. A.) 275 F. 766. And the result is to give to section 1 of the Employers' Liability Act of April 22, 1908, the same effect as though it read:

"Every common carrier by railroad while engaging in commerce between any of the several states or territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment or due to the violation by such common carrier of any statute enacted for the benefit of employees."

So construed and read, the Employers' Liability Act (Comp. St. §§ 8657-8665) gives a right of action to an employee not only for an injury or death arising out of the negligence of the officers, agents or employees of the carrier or due to the carrier's negligence in providing cars, engines, appliances, machinery, track, roadbed, boats, wharves or other equipment, but due to the violation of a duty imposed by the Safety Appliance Act and its supplements for failure to equip and maintain its cars and engines as therein required. See Davis v. Manry, 266 U. S. 401, 403, 45 S. Ct. 163, 69 L. Ed. 350.

The plaintiff's declaration charged negligence only. The ground on which the case was submitted to the jury was not negligence, but the breach of a duty or duties claimed to be imposed upon the carrier by the Safety Appliance Act and its supplements. No objection, however, was taken to the declaration on this account, and it may be regarded as amended to conform to the issue...