Hogarty v. Philadelphia & R. Ry. Co.
| Citation | 99 A. 741,255 Pa. 236 |
| Parties | HOGARTY v. PHILADELPHIA & R. RY. CO. |
| Decision Date | 09 October 1916 |
| Court | United States State Supreme Court of Pennsylvania |
255 Pa. 236
HOGARTY
v.
PHILADELPHIA & R. RY. CO.
Supreme Court of Pennsylvania.
Oct. 9, 1916.
Moschzisker, J., dissenting.
Appeal from Court of Common Pleas, Philadelphia County.
Action by William J. Hogarty against the Philadelphia & Reading Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.
Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, MOSCHZISKER, FRAZER, and WALLING, JJ.
Wm. Clarke Mason, of Philadelphia, for appellant. Ira Jewell Williams, of Philadelphia, for appellee.
BROWN, C. J. On February 1, 1910, William J. Hogarty, while performing his duties as an extra freight conductor of a shifting crew of the Philadelphia & Reading Railway Company, was thrown under a car and sustained serious injuries, which resulted in the loss of his right arm. He was thrown under the car by coming in contact with a telegraph pole, which he alleges in the statement of his cause of action had been negligently placed and left by the railway company too close to the track on which the cars in his charge were being shifted. In the performance of his duties at the time he was injured it was necessary for him to lean out beyond the side of a car to uncouple it while it was in motion, and in so leaning out his body struck the pole. The case has been twice tried. On the first trial the jury were instructed to find for the defendant, and judgment was subsequently entered in its favor. Plaintiff's statement of claim averred a mere common-law liability on the part of the defendant, and, it having proved that he had accepted benefits as a member of its relief association, the court below sustained its contention that he could not recover under Reese v. Pennsylvania R. R. Co., 229 Pa. 340, 78 Atl. 851, and other cases. He called attention to the act of Congress of April 22, 1908 (35 Stat. 65, c. 149), which forbids the defense set up; the defendant having admitted that at the time he was injured it was engaged, and he was employed by it, in interstate commerce. To this the defendant replied that, as the suit had been brought at common law, the federal statute was without application. The rejoinder of the plaintiff was that, if he should have formally pleaded the federal statute, he was entitled to amend. On his appeal from the judgment in favor of the defendant his right to amend was sustained by this court, and the judgment was reversed with a venire facias de novo. Hogarty v. Philadelphia & Reading Railway Company, 245 Pa. 443, 91 Atl. 854. The second trial resulted in a verdict and judgment for the plaintiff, and, on defendant's appeal from it, we are asked, in effect, to reconsider our action in sustaining the plaintiff's appeal from the judgment entered on the first trial; and we must do so if what we then held is as counsel for defendant contends, in conflict with certain rulings of the Supreme Court of the United States, one of which was made since this appeal was taken. The questions which counsel were directed to argue are: (1) Were the original pleadings sufficient to sustain judgment for the plaintiff? (2) Did the court below err in allowing the statement of claim to be amended?
The federal Employers' Liability Act of 1908 supersedes the laws of the states upon all matters within its scope, and in cases involving accidents to the employes of railroad companies when engaged in interstate commerce the state laws must be regarded as nonexistent (Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. [N. S.] 44; St. Louis, San Francisco & Texas Ry. Company v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Bd. 1129, Ann. Cas. 1914C, 156; Taylor v. Taylor, 232 U. S. 363, 34 Sup. Ct. 350, 58 L. Ed. 638; Wabash Railroad Company v. Hayes, 234 U. S. 86, 34 Sup. Ct. 729, 58 L. Ed. 1226; Hogarty v. Philadelphia & Reading Ry. Company, supra); but, while this is so, the common-law liability of a railroad company engaged in intrastate commerce continues, and a right to recover from it for negligence, when so engaged, is still subject to common-law rules (Wabash Railroad Company v. Hayes, supra; Hench v. Pennsylvania Railroad Company, 246 Pa. 1, 91 Atl. 1056, L. R. A. 1915D, 557, Ann. Cas. 1916D, 230).
The action which the appellee brought against the appellant was strictly one at common law to enforce a common-law liability. This conclusively appears from the statement of his cause of action, which is as follows:
"On February 1, 1910, plaintiff was employed by defendant as freight conductor on a train of freight cars in its Philadelphia yards near American street and Lehigh avenue, and was directed by William L. Weyman, then acting for defendant, to place two of said cars (there being several in the train) on a certain track. In the performance of this duty plaintiff was required to lean over between two of the cars to uncouple them while the train was moving, and whilst so doing, through no fault of his own, his body struck a telegraph pole, he was thrown beneath the wheels, had three ribs and a collar bone broken, and his right arm was crushed (afterwards amputated). The defendant was negligent in having the pole too close to the track or the track too close to the pole, there not being sufficient room between the two to permit safe performance of the service as directed, and in directing plaintiff to put the cars on the said track, the danger being unknown to plaintiff and no warning given."
Not a word is to be found in plaintiff's statement indicating anything but a common-law liability on the part of the defendant, and to the charge therein alleged against it it came into court with a complete common-law defense. It was held, however, on plaintiff's appeal, that, notwithstanding the common-law cause of action which he had set forth in his pleadings, the act of Congress was controlling, in view of the admission of the defendant that at the time the plaintiff was injured it and he were engaged in interstate
commerce. After argument and reargument of this appeal, ordered of our own motion, we are of opinion that our view expressed on the first appeal is not in harmony with the rulings of the Supreme Court of the United States, and, as they are controlling, what we there held must yield to them.
As the act of Congress, and not the common law, gave the plaintiff a right to recover, his pleadings ought to have shown that his case was within the federal statute, and proof of this was a material part of it. In Garrett v. Louisville & Nashville Railroad Company, 235 U. S. 308, 35 Sup. Ct. 32, 59 L. Ed. 242, which was an action for damages under the federal Employers' Liability Act, the plaintiff sought to recover for the pecuniary loss to the parents of the deceased employé of the defendant company; but, as his declaration failed to set forth such loss, recoverable under the act of Congress, it was held that for this reason there could be no recovery. In so holding it was said:
"Where any fact is necessary to be proved in order to sustain the plaintiff's right of recovery, the declaration must contain an averment substantially of such fact in order to let in the proof. Every issue must be founded upon some certain point so that the parties may come prepared with their evidence, and not be taken by surprise, and the jury may not be misled by the introduction of various matters. * * * The request is now made that in view of all the circumstances, especially the former undetermined meaning of the statute, this court remand the cause for a new trial upon the declaration being so amended as to include the essential allegation. But we do not think such action would be proper. The courts below committed no error of which just complaint can be made here; and the rights of the defendant must be given effect, notwithstanding the unusual difficulties and uncertainties with which counsel for the plaintiff found himself confronted."
This rule was observed in Allen v. Tuscarora Valley Railroad Company, 229 Pa. 97, 78 Atl. 34, 30 L. R. A. (N. S.) 1096, 140 Am. St Rep. 714, where we held that the court below had improperly allowed an amendment of plaintiff's statement after two years from the time of the accident. The amendment averred that the defendant corporation, at the time of the committing of the grievances complained of, was engaged in interstate commerce. In holding that the amendment introduced a new and different cause of action, which was barred by the statute of limitations, we said, through Mr. Justice Mestrezat:
"The original statement, it is true, averred the injuries of the plaintiff and the alleged negligent act of the defendant by which they were caused, but there was no intimation in the statement that the carrier was engaged in interstate commerce or that the defendant's cars were equipped with couplers in violation of the act of Congress. Proof of the existence of these two additional facts was required to sustain the action as amended, and this is one of the tests in determining whether the amendment introduces a different cause of action. Wabash R. R. Co. v. Bhymer, 214 Ill. 579 [73 N. E. 879]. It is apparent that without this amendment the act of Congress could have had no place in the case."
In Brinkmeier v. Missouri Pacific Railroad Company, 224 U. S. 268, 32 Sup. Ct. 412, 56 L. Ed. 758, in referring to the attempt to secure the advantage of the safety appliance acts of Congress under insufficient pleadings, Mr. Justice Van Devanter said:
"The petition, if liberally construed, charged that defendant was a common carrier engaged in interstate commerce by railroad, that the cars in question were not equipped with couplers of the prescribed type, and that the plaintiff's injuries proximately resulted from the absence of such couplers; but there was no allegation that either of the cars was then or at any time used in moving interstate traffic. The Supreme Court of the state held that in the absence of such an...
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