Chesapeake & O. Ry. Co v. Carnahan

• Decision Date: 11 November 1915
• Citation: 86 S.E. 863,118 Va. 46
• Court: Virginia Supreme Court
• Parties: CHESAPEAKE & O. RY. CO. v. CARNAHAN.

86 S.E. 863

118 Va. 46

CHESAPEAKE & O. RY. CO.

v.CARNAHAN.

Supreme Court of Appeals of Virginia.

Nov. 11, 1915.

Error to Circuit Court, Hanover County.

Action by Asa P. Carnahan against the Chesapeake & Ohio Railway Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

D. H. & Walter Leake and Henry Taylor, Jr., all of Richmond, for plaintiff in error.

Allen & Walsh, for defendant in error.

CARDWELL, J. This action was brought by the defendant in error, Asa P. Carnahan, against the plaintiff in error, the Chesapeake & Ohio Railway Company, to recover damages for personal injuries imputed to the negligence of the defendant. At the trial there was a verdict and judgment for the plaintiff for $25,000 damages, and to that judgment this writ of error was awarded.

The plaintiff was, and had been for some years prior to his injury, an employe of the defendant as fireman on both freight and passenger trains, and on the date of his injury, March 7, 1913, was in the line of his duty on one of defendant's trains, which left Richmond, Va., at 12:40 a. m., west-bound; the train, besides the engine and tender, consisting of seven empty tourist sleepers, being moved "dead-head" (i. e., without passengers or freight) from Richmond, Va., and destined to points without this state. Upon the arrival of the train at Doswell about 2 o'clock a. m., and as it approached that station, before crossing the tracks of the Richmond, Fredericksburg & Potomac Railroad Company at that point, it stopped on signal given by Telegraph Operator J. W. Beasley in the tower of Doswell; the signal being given on account of there being then a series or "cut" of 15 or 16 empty cars, coupled together, standing on the main track a short distance west of Doswell, just west of a county road crossing, which were being collected into a special train in charge of Conductor J. R. Shisler to be brought east to Richmond. This "cut" of empty cars had just been placed by Conductor Shisler on the main track, with the caboose on the west end of them, and no lights of any sort on the east end; that is, facing the direction from which the train that plaintiff was firing approached. Nor was there a flagman placed there to protect said "cut" of cars, or to give warning of an approaching train, the engine that had placed them on the main track being then on a side track nearer to the station—Doswell.

After delaying plaintiff's train, west-bound, some six or seven minutes at the point where it had been stopped on signal, a signal was given it by Operator Beasley, from the tower or telegraph office, to proceed, meaning that the main track was clear, and the train, proceeding, ran into the east end of said "cut" of cars that had been left standing on the main track, as stated.

In the collision, the plaintiff was caught, from his knee of his right leg down, between the tank on the tender and the boiler head in the cab of his engine, and remained pinned in that position for 45 or 50 minutes before he was extricated by the efforts of his fellow workmen. His leg was so badly mashed and burned that it eventually had to be amputated at a point between the knee and the thigh, and it is for these injuries and his consequent sufferings that he sues to recover damages.

The declaration contains four counts. The first two counts charge that plaintiff and defendant were engaged in interstate commerce, thus alleging a cause of action under the Employers' Liability Act of Congress. One of these was based upon the alleged negligence of Operator Beasley, and the other upon the alleged negligence of the train crew of the train standing at Doswell under Conductor Shisler's charge. The other two counts were based upon the same grounds of negligence, save that they omitted any allegation as to the parties being engaged in interstate commerce, thus alleging a cause of action under the law of this state. There was a demurrer to the declaration upon the ground that it was improper to combine in one suit a cause of action under the Employers' Liability Act of Congress and the state law, which demurrer was overruled, and this ruling is made the basis of defendant's first assignment of error, but in the oral argument of the case before this court the assignment was waived.

The case was tried by a jury of seven, in accordance with the provisions of section 3166 of the Code of 1904. It was regularly summoned under the state laws, and consisted of nine veniremen, which, after the plaintiff and defendant had each stricken off one venireman, left the jury of seven who tried the case. Before the jury, however, had been examined on their voir dire, and before any members of the panel had been stricken off by either party, the defendant challenged the array of jurors and moved the court to quash the Venire facias, upon the grounds that the jury was not summoned, selected, formed, and constituted as requiredby article 7 of the amendments to the Constitution of the United States, which is as follows:

"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law."

The motion to quash the venire was overruled, and this ruling is made the basis of the defendant's second assignment of error here; the contention being that the rights asserted in this suit are federal rights, created by the Congress of the United States, and can only be tried by the common-law jury of 12, required by the seventh amendment to the Constitution, supra, since the jury referred to in this amendment is the common-law jury of 12.

This contention is without merit. Section 6 of the Employers' Liability Act, as amended by Act April 5, 1910, expressly provides that the federal courts shall have concurrent jurisdiction with the state courts of cases arising under the act, and that no case brought in a state court shall be removed to a federal court. How else is a state court to exercise its jurisdiction in such a case, except according to the procedure provided for in its own statutes? The statutes of this state make no provision for a trial in civil cases by a jury of 12, except for some special reason, when a special jury may be summoned under section 3158 of the Code, and the allowance or refusal of a special jury is a matter resting in the sound discretion of the court. A. & D. R. Co. v. Peake, 87 Va. 130, 12 S. E. 348.

Upon reason and authority it is not essential to the enforcement of a right created by a federal law that provisions of the federal Constitution regarding the administration of the federal law be followed. The enforcement of a federal right, as it seems to us from the authorities, does not differ from the enforcement of rights created by other sovereignties than the United States, in that it draws with it the necessity of enforcement in the manner prescribed by the federal Constitution for the administration of justice.

It is well said by the learned counsel for the plaintiff in this case:

"Rights created by the Congress of the United States become a subject of litigation between parties and are enforced as a basis of liability in the same manner as are other rights subsisting between litigants. The United States is a sovereign possessing all the attributes of sovereignty, though exercising its sovereignty over a limited subject-matter. One of the attributes of sovereignty is the authority to create rights and obligations between persons amenable to its jurisdiction. Those rights, once created, in no way differ from rights created by any other sovereignty. It is true that, owing to the peculiar relation between the national and state governments, the national and federal government may exclude the state courts from the exercise of jurisdiction over federal rights; but, in the absence of such restriction, federal rights are en forceable in any court having jurisdiction of the parties."

The relation of the state courts to rights created by the Congress of the United States is very clearly explained in the Federalist, No. 82, page 608, as follows:

"I mean not, therefore, to contend that the United States, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts, solely, if such a measure should be deemed expedient; but I hold that the state courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am of opinion that in every case in which they were not expressly excluded by the future actions of the national Legislature, they will, of course, take cognizance of the cause to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, although the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan not less than those of New York may furnish the objects of legal discussion to our courts. When in addition to this we consider the state government and the national government as they truly are, in the light of kindred systems, and as parts of one whole, the inference seems to be conclusive that the state courts would have concurrent jurisdiction in all cases arising under the laws of the Union, where it is not expressly prohibited."

In the Second Employers' Liability Cases— Mondou v. N. Y., N. H. & H. Ry. Co.—223 U. S. 1, 32 Sup. Ct 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, the court, in reviewing the action of the state court of Connecticut in refusing to enforce the act, because not in harmony with the policy of that state, said:

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