Hench v. Pennsylvania R. Co.
| Decision Date | 01 July 1914 |
| Docket Number | 202 |
| Citation | 246 Pa. 1,91 A. 1056 |
| Parties | Hench v. Pennsylvania Railroad Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued May 4, 1914
Appeal, No. 202, Oct. T., 1913, by defendant, from judgment of C.P. Washington Co., Aug. T., 1912, No. 70, on verdict for plaintiff, in case of Stella M. Hench, Administratrix of the Estate of Edgar S. Hench, deceased, v. Pennsylvania Railroad Company. Reversed.
Trespass to recover damages for the death of plaintiff's husband. Before TAYLOR, J.
The witness Allen was a clerk in defendant's employ, who had charge of the records of loaded cars moved in the freight yard, where the accident occurred.
Other facts appear in the opinion of the Supreme Court.
Verdict for plaintiff for $9,000, and judgment thereon. Defendant appealed.
Errors assigned were rulings on evidence, instructions to the jury and in refusing to direct a verdict for defendant and to enter judgment for defendant n.o.v.
Judgment reversed and is here entered for defendant upon the whole record.
R. W. Irwin and Rufus S. Marriner, with them Jas. A. Wiley, for appellant. -- The evidence was insufficient to sustain the allegations that deceased was engaged in interstate commerce at the time of the accident: Pederson v. The Del., Lackawanna & Western, 33 U.S. Superior Ct. Repr. 648; Mondou v. N.Y., N.H. & H.R.C., 223 U.S. 1; Baltimore & Ohio Railroad Company v. George H. Darr, 204 Fed. Repr. 751; Johnson v. S.P. Co., 196 U.S. 1; St. Louis & S.F.R. Co. v. Delk, 86 C.C.A. 95, 158 F. 931; M. P. Horton, Administrator, v. Oregon, Washington R.R. & Nav. Co., 72 Washington 503; Zikos v. Oregon R.R. & Nav. Co. (C.C.) 179 F. 893; Colaurdo v. The Central R. Co., (C.C.) 180 F. 832; Baker v. Kansas City, M. & O. R. C., 88 Kan. 767; Dewberry v. Southern R. Co. 175 F. 307; Charleston and W.C.R. Co. v. Anchors, 10 Ga.App. 322, 73 S.E. 551; Behrens v. Ill. C.R. Co., (D.C.) 192 F. 581.
There was no suppression of evidence relating to the character of the commerce in which the draft of cars were being used which would raise a presumption that deceased was engaged in interstate commerce: Tsmura v. Great Northern Ry. Co., 58 Wash. 316, 108 Pac. Repr. 774; Penna. R.R. Co. v. Raiordan, 119 Pa. 577; Chaffee v. U.S., 85 U.S. 501.
W. Clyde Grubbs, with him Edwin T. Levengood and Alexander M. Templeton, for appellee. -- There was evidence from which the inference could be drawn that the cars about which deceased was working were being used in interstate commerce at the time of the accident: Chandler v. Roeder, 65 U.S. 227; Longenecker v. Pennsylvania Railroad Company, 105 Pa. 328; McGrann v. Pittsburgh & Lake Erie Railroad, 111 Pa. 171; Fisher v. The Monongahela Connecting Railroad Company, 131 Pa. 292; Johnson v. Brunner, 61 Pa. 58; Devlin v. The Beacon Light Company, 198 Pa. 583 (48 A. Repr. 482); Smith v. The Baltimore and Ohio Railroad Company, 158 Pa. 82 (27 A. Repr. 847); Portland Ice Company v. Connor, 32 Pa.Super. 428; Cohen v. The Philadelphia & Reading, 211 Pa. 227 (60 A. Repr. 729); Bannon v. Pennsylvania Railroad, 29 Pa. Superior Ct., 231; Pennsylvania Railroad v. White, 88 Pa. 327; Warner v. The B. & O., 168 U.S. 329 (18 So. Repr. 68); Richmond and Danville Railroad Company v. Powers, 149 U.S. 43 (13 So. Repr. 748); B. & O. Railroad v. Griffith, 159 U.S. 603 (16 So. Repr. 105); Ferry v. The Philadelphia Rapid Transit, 232 Pa. 403; McManamon v. Hanover Township, 232 Pa. 439; Heh v. Consolidated Gas Company, 201 Pa. 443 (50 A. Repr. 994); North Carolina Railroad Company v. Zachary, 232 U.S. 248.
Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.
This is an action of trespass to recover damages for personal injuries resulting in the death of plaintiff's husband who was employed as a brakeman in a general freight yard of defendant railroad company located in the City of Pittsburgh. The suit was brought under two Acts of Congress -- the Employer's Liability Act of April 22, 1908, and the Safety Appliance Act of March 2, 1893. In such a case the burden is on the party suing to prove the facts necessary to show a violation of the Federal statutes, and that the injured party was engaged in interstate commerce or with its instrumentalities at the time of the accident. In the case at bar the injured party was engaged as a brakeman on a shifting crew in a freight yard where all kinds of freight were received and distributed. If the action had been brought at common law or for the violation of a State statute, the question of the character of the commerce in which the decedent was engaged at the time of his injury would have been immaterial; but plaintiff elected to bring her suit under the Acts of Congress, as she clearly had the right to do, and thus assumed the burden of making out a case under the Federal statutes. The controlling question for decision here is whether the evidence adduced at the trial was sufficient to make out a prima facie case under the Acts of Congress relied on to sustain a recovery. Appellant contends the evidence does not show that in the performance of his duties as brakeman the deceased husband had anything to do with interstate commerce, or that at the time of the injury he was engaged in such commerce, or that the cars being shifted in the freight yard where decedent was injured, including the cars which caused the injuries, were so engaged. Even counsel for appellee concede that there was no direct or positive testimony bearing upon these material questions. No attempt was made to prove what the general duties of decedent were, or what duties were included within the scope of his employment, and the fact that he was a brakeman only appears as an incident of the trial without explanation as to the character of his general duties, or that he had anything to do in connection with interstate shipments. At the close of the trial the only substantive fact proved tending to show in any way decedent to have been engaged even remotely in interstate commerce, was that in the freight yard where he was employed cars containing both intra and interstate shipments were received, stored, shifted, and reloaded for transportation from time to time. So far as the evidence discloses there is no greater presumption that the empty cars being shifted at the time of the accident were intended for use in interstate commerce, than that they were to contain intrastate shipments. The evidence is silent as to the character of freight with which these cars were loaded when they arrived in the freight yard, what disposition had been made of the cars after their arrival, and what kind of shipments, if any, they contained when they left the yard. All of these important facts are left to conjecture. Can it be said under these circumstances that the plaintiff made out a case under the Acts of Congress? It is argued that where there is no direct or positive evidence of the negligence charged, or of the facts required to make the Acts of Congress applicable, the circumstances may be such as to warrant the necessary inference to be drawn by the jury. This is stating the rule more broadly than the cases relied on warrant. It is true that the facts proved at the trial may warrant a presumption of negligence and there are exceptional cases in which it has been so held. But even in such cases it is for the court to say whether the facts proved are sufficient to raise the presumption relied on: 38 Cyc. 1519; Stoever v. Whitman, 6 Binney 416. In the case at bar the facts proved do not show what kind of commerce decedent was engaged in at the time of the accident. The empty cars may have been intended for interstate shipments, or for intrastate. There is no more presumption one way than the other. The presumptions in this respect are equal, if indeed it can be said there is any presumption under such circumstances. Again, it is worthy of notice, that the cars being shifted were empties and did not contain any kind of commerce, and there is no evidence to show from whence they came nor whither they were going; what kind of shipments they carried into the freight yard, or what character of commerce they were engaged in when they left it.
It is further contended for appellee that the failure to produce the records of the draft of cars in question when subpoenaed to do so amounts to a suppression of evidence on the part of appellant and raises a presumption that decedent was engaged in interstate commerce. The difficulty with this argument is that the facts do not sustain it. The witness Allen was subpoenaed to produce the records of the conductor Hickey showing the cars he moved in the freight yard on the night of the accident. The witness appeared and testified and there is nothing in his testimony to indicate a suppression of evidence. He said he had no such records and that as soon as the subpoena was served he wired the Philadelphia office where all records were kept, asking for the records in question, but was informed that no record of empty cars was kept. This witness testified that reports of loaded cars were kept, but not of empty cars handled in the...
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