Delaware, L. & W. R. Co. v. Troxell

• Decision Date: 06 November 1912
• Docket Number: 1,623.
• Citation: 200 F. 44
• Parties: DELAWARE, L. & W.R. CO. v. TROXELL.
• Court: U.S. Court of Appeals — Third Circuit

200 F. 44

DELAWARE, L. & W.R. CO. v. TROXELL.

No. 1,623.

United States Court of Appeals, Third Circuit.

November 6, 1912

Paul Freeman, of Philadelphia, Daniel R. Reese and J. Hayden Oliver, both of Scranton, and James F. Campbell, of Philadelphia, for plaintiff in error.

George Demming, of Philadelphia, for defendant in error.

Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.

J. B McPHERSON, Circuit Judge.

The plaintiff's husband was a fireman in the company's service, and the injury complained of is his death in July 1909, while at work on a train that was engaged in commerce among the states. This is the second suit; the first having also been brought in the (present) District Court for the Eastern District of Pennsylvania. The cause of action set up, both then and now, is:

'The negligence, carelessness, and oversight of said defendant, and its failure to supply and keep in good efficient condition proper, necessary, and safe devices, instruments, and apparatus (whereby) said locomotive and train came into violent collision with several loose and runaway cars, causing a wreck, whereby and wherein said Joseph Daniel Troxell lost his life.'

In the first suit the plaintiff recovered a judgment, but this court reversed it (Railroad Co. v. Troxell, 183 F. 373, 105 C.C.A. 593), and directed judgment to be entered for the company. The plaintiff then was Lizzie M. Troxell, suing as an individual, but in behalf of herself and their two children; and after her failure to recover she took out letters of administration and brought the suit that is now before us. She recovered a second judgment, and the company is again before this court, setting out numerous assignments of error to the conduct of the trial. We shall not consider them in detail. In our opinion the rule of res judicata applies, and requires judgment to be entered for the defendant.

When the first suit came on for trial, the scope of the Employer's Liability Act of 1908 had not been passed upon by the Supreme Court, and the Circuit Court did not have the benefit of the elaborate opinion delivered in the several cases reported in 223 U.S. 1, 32 Sup.Ct. 169, 56 L.Ed. 327. Among the points there decided is this:

'True, prior to the present act, the laws of the several states were regarded as determinative of the liability of employers engaged in interstate commerce for injuries received by their employes while engaged in such commerce. But that was because Congress, although empowered to regulate that subject, had not acted thereon, and because the subject is one which falls within the police power of the states in the absence of action by Congress. Sherlock v. Alling, 93 U.S. 99 (23 L.Ed. 819); Smith v. Alabama, 124 U.S. 465, 473, 480, 482 (8 Sup.Ct. 564, 31 L.Ed. 508); Nashville, etc., Railway v. Alabama, 128 U.S. 96, 99 (9 Sup.Ct. 28, 32 L.Ed. 352); Reid v. Colorado, 187 U.S. 137, 146 (23 Sup.Ct. 92, 47 L.Ed. 108). The inaction of Congress, however, in no wise affected its power over the subject. The Lottawanna, 21 Wall. 558, 581 (22 L.Ed. 654); Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 215 (5 Sup.Ct. 826, 29 L.Ed. 158). And now that Congress has acted, the laws of the states, in so far as they cover the same filed, are superseded, for necessarily that which is not supreme must yield to that which is. Gulf, Colorado & Santa Fe Railway Co. v. Hefley, 15, U.S. 98, 104 (15 Sup.Ct. 802, 39 L.Ed. 910); Southern Railway Co. v. Reid, 222 U.S. 424 (32 Sup.Ct. 140, 56 L.Ed. 257); Northern Pacific Railway Co. v. Washington, 222 U.S. 370 (32 Sup.Ct. 160, 56 L.Ed. 237). ' Second Employers' Liability Cases, 223 U.S. 54, 32 Sup.Ct. 177, 56 L.Ed. 327.

It follows that the first suit was governed, not by the law of Pennsylvania, but by the act of Congress; and, indeed, the statement of claim was evidently drawn from that point of view. It averred (and the present statement also avers) that:

'On or about the 21st day of July, 1909, said Joseph Daniel Troxell, the husband of said widow, Lizzie M. Troxell, was employed by said defendant corporation in the capacity of fireman on a locomotive, pulling and hauling one of said defendant's trains, carrying interstate and foreign commerce and traffic, and on and about the cars, tracks, roadbed, and right of way used and employed by said defendant in its interstate and foreign commerce and traffic, on and about the Bangor & Portland Railroad Company, owned, controlled, operated, and directed by said defendant, at and near the town of Belfast, Northampton county, Pennsylvania.'

It is true that, after the evidence had all been heard at the first trial, her counsel attempted to limit the ground of the plaintiff's claim, evidently supposing that he could abandon the act of Congress, and stand upon her former...