Delaware & Hudson Co. v. Ketz

• Decision Date: 24 April 1916
• Docket Number: 2081.
• Citation: 233 F. 31
• Court: U.S. Court of Appeals — Third Circuit
• Parties: DELAWARE & HUDSON CO. v. KETZ.

233 F. 31

DELAWARE & HUDSON CO. v. KETZ.

No. 2081.

United States Court of Appeals, Third Circuit.

April 24, 1916

W. J Torrey and James H. Torrey, both of Scranton, Pa., for plaintiff in error.

R. L Levy and Leon M. Levy, both of Scranton, Pa., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

McPHERSON Circuit Judge.

The plaintiff, Anna Ketz, is the widow of George Ketz, who was drowned on the afternoon of Sunday, April 26, 1914. He had been working at a roundhouse of the Delaware & Hudson Company, and while on his way home fell from a bridge spanning the Lackawanna river between his place of work and the town of Carbondale. The bridge had been built and was maintained by the company primarily as a means of access to the roundhouse and other shops, although its use by the public was also permitted. In her statement of claim the plaintiff describes herself as the administratrix of her husband, and also as a citizen of Pennsylvania, declaring her husband also to have been a citizen of that state. She sues as his personal representative, in behalf of herself and their minor children, and describes the company as a citizen of New York. She then goes on to state that on April 26 the company was engaged in interstate commerce; that her husband also was so engaged as a servant of the company; and that, in order to enable its servants to reach and leave the roundhouse, the company furnished the bridge in question. She asserts that the bridge was dangerous, because it was provided with a guard rail or barrier upon only one of its sides; avers that her husband lost his footing, fell into the river from the unguarded side, and was drowned; and charges that the fall was due to the company's negligence in failing to protect the bridge adequately, and to 'its failure to furnish a safe place to work and safe appliances in and about the place of his employment, and safe approaches and exists in and about the said place of employment.'

There is no material dispute about the facts. Ketz had been in the company's service about a year; he was a pipe fitter, and was charged with the duty of repairing the pipes of such engines as might come into the roundhouse from time to time. The company operates a railroad running from Wilkes-Barre Pa., into the state of New York, and is largely engaged in interstate commerce; but part of its business is intrastate for example, the carriage of passengers between Wilkes-Barre and Carbondale, neighboring towns in the state of Pennsylvania. About 20 engines used the roundhouse as a place of storage or repair. Some of them were of the Mallet type, and were used to push trains upgrade from Carbondale to Ararat Summit; both these points are in Pennsylvania, but nearly all the trains went on from Ararat into the state of New York. Some engines, however, were used only for passenger service between Carbondale and Wilkes-Barre, and on Sundays another engine might come in from a passenger train that was run on that day between New York state and Carbondale. At times still other engines might be sent in for unexpected repairs.

The bridge is a little more than 14 feet wide and about 114 feet long; it has a railing 4 feet high on the upper side, but on the lower side there was no guard, except a wheel rail, or block-- a heavy timber about 9 inches high and 10 inches wide, fastened to the planks and running the length of the bridge. There were two of these wheel rails one on each side of the bridge, and the roadway between them is nearly 12 feet wide. On the day in question Ketz had been employed in the roundhouse, but no evidence was offered to show what he had been doing, or upon what engine. At 5 o'clock he started for his home in Carbondale. The daylight was ample, and he was familiar with the bridge, having crossed it many times during the year preceding. On this occasion, for some reason that is left in doubt by the meager evidence, he fell off the bridge from the lower or unguarded side and was drowned. The only witness of the occurrence was a woman, who was looking across the river from her kitchen window about 300 feet away, and saw Ketz approach the bridge, enter upon it close to the guard rail, and cross diagonally to the lower side. There he stumbled (as she thought), threw up his hands, and fell into the water. Twenty-four hours later she visited the spot, but found nothing that would account for his fall, and there is no other testimony concerning the condition of the roadway or the bridge. If the river had not been in flood, he would probably have escaped without serious mishap. A board sidewalk, more than 2 feet wide, runs along the street or highway on both sides of the river, and leads to and from the ends of the upper or guarded side of the bridge. Crossing was perfectly safe under all ordinary conditions. Another man preceded Ketz by a few feet, using the upper side of the bridge, and crossed without having his attention called to the accident.

The suit is brought under the Carriers' Liability Act of 1908 (Act April 22, 1908, c. 149, 35 Stat. 65, 4 Comp.Stat. Sec. 8657 et seq.) and the federal questions presented by the statement of claim are whether the death occurred while the company was 'engaged in commerce between any of the several states, ' and whether the deceased suffered death 'while he (was) employed by such carrier in such commerce. ' On these subjects the evidence is scanty and not satisfactory, and the plaintiff is compelled to rely on such presumptions or inferences as are said to be warranted by the few facts in proof. The argument is thus outlined in her counsel's brief:

'1. A workman whose general employment is in the interstate commerce and intrastate commerce of a railroad is, generally speaking, engaged in interstate commerce, and is within the protection of the act.

'2. An employe who meets with injury while, generally speaking, engaged in interstate commerce, is within the protection of the act, and he does not lose the protection of the act unless it appears by affirmative evidence that he was engaged in intrastate commerce at the time that he came to his death.' We do not find it necessary to consider these propositions, or to examine the cases referred to by one side or the other. Railroad v. Behrens, 233 U.S. 473, 34 Sup.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163; Railroad v. Glynn, 219 F. 148, 135 C.C.A. 46; Pedersen v. Railroad, 229 U.S. 146, 33 Sup.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153; Horton v. Railroad & Navigation Company, 72 Wash. 503, 130 P. 897, 47 L.R.A. (N.S.) 8; Lamphere v. Railway Company, 196 F. 336, 116 C.C.A. 156, 47 L.R.A. (N.S.) 1; Erie R.R. v. Jacobus, 221 F. 336, 137 C.C.A. 151; Railroad v. Zachary, 232 U.S. 248, 34 Sup.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1915C, 159; Railroad v. Davide, 210 F. 870, 127 C.C.A. 454; Railroad v. Rogers, 221 F. 52, 136 C.C.A. 530; Boyle v. Railroad (D.C.) 221 F. 453; Shanley v. Railroad (D.C.) 221 F. 1012. We think our decision should rest on other grounds, and shall therefore assume (but without deciding) that the act would be satisfied if the fact were that Ketz had just been engaged in the repair of interstate engines, and shall assume also that the jury was properly allowed to find this fact; and for the purposes of this opinion we shall assume further that the jury was justified in finding that the company was negligent in leaving the lower side of the bridge unguarded, but it is plain that a vital question still remained, namely: Was this negligence the proximate cause of the death?

This rather perplexing subject of proximate cause has received much attention, both from text-writers and the courts, and the numerous cases are by no means harmonious. Elaborate notes, with very full citations, may be found in 13 L.R.A.(N.S.) 1219, 18 L.R.A.(N.S.) 1135, and 20 L.R.A.(N.S.) 732; but for the rule in the federal courts we need not go beyond Railway Co. v. Kellogg, 94 U.S. 474, 24 L.Ed 256...