Hogarty v. Philadelphia & R. Ry. Co.

• Decision Date: 09 October 1916
• Docket Number: 476
• Citation: 99 A. 741,255 Pa. 236
• Parties: Hogarty v. Philadelphia & Reading Railway Company, Appellant
• Court: Pennsylvania Supreme Court

99 A. 741

255 Pa. 236

Hogarty v. Philadelphia & Reading Railway Company, Appellant

No. 476

Supreme Court of Pennsylvania

October 9, 1916

March 24, 1915, Argued; March 14, 1916, Reargued

Appeal, No. 476, Jan. T., 1914, by defendant, from judgment of C.P. No. 5, March T., 1911, No. 1636, on verdict for plaintiff, in case of William J. Hogarty v. Philadelphia &amp Reading Railway Company. Reversed.

Trespass to recover damages for personal injuries. Before MARTIN, P.J.

The facts appear in Hogarty v. Philadelphia & Reading Ry Co., 245 Pa. 443, and in the opinion of the Supreme Court.

Verdict for plaintiff for $6,500 and judgment thereon. Defendant appealed.

Errors assigned were in permitting plaintiff to amend his statement of claim after the statute of limitations had run, in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n.o.v.

The assignments of error are sustained, the judgment below is reversed and is here entered for the defendant.

Wm Clarke Mason, for appellant. -- The original statement of claim filed by the plaintiff failed to aver a cause of action under the Federal Employers' Liability Act; as Section 6 of the Act of Congress of April 22, 1908, c. 149, 35 U.S. Stat. 65, provides that no action shall be maintained under the statute unless commenced within two years from the date of the cause of action accrued, the amendment to the statement of claim was improperly allowed; and as except for the amendment there was a variance between the proof and the original declaration, the defendant was entitled to have a verdict directed in its favor: St. Louis, San Francisco & Texas Ry. Co. v. Seale, 229 U.S. 156; Pedersen v. Delaware, Lack. & Western R.R. Co., 229 U.S. 146; Brinkmeier v. Missouri Pacific Ry. Co., 224 U.S. 268; Seaboard Air Line Ry. v. Duvall, 225 U.S. 477; Grand Trunk Western Ry. Co. v. Lindsay, 233 U.S. 42; North Carolina R.R. Co. v. Zachary, 232 U.S. 248; Wabash R.R. Co. v. Hayes, 234 U.S. 86; Garrett v. Louisville & Nashville R.R. Co., 35 Supreme Ct. Repr. 32; Allen v. Tuscarora Valley R.R. Co., 229 Pa. 97.

Ira Jewell Williams, of Simpson, Brown & Williams, for appellee. -- The amendment was properly allowed: Bolton v. Hey, 168 Pa. 418; Devine's Est., 199 Pa. 250; Fellows v. Loomis (No. 1), 204 Pa. 225; Lafferty's Est., 230 Pa. 496; Peoples Water Co. v. Pittson, 241 Pa. 208; Cassell v. Cooke, 8 S. & R. 268; Rodridgue v. Curcier, 15 S. & R. 81; Coxe v. Tilghman et al., 1 Wharton 282; Erie City Iron Works v. Barber, 118 Pa. 6; Noonan v. Pardee, 200 Pa. 474; Booth v. Dorsey, 202 Pa. 381; Holmes v. Penna. R.R. Co., 220 Pa. 189; Missouri, Kansas & Texas Ry. Co. v. Wulf, 226 U.S. 570; Bixler, et ux., v. Penna. R.R., 201 Fed. Repr. 553; Renn v. Seaboard Air Line Ry. Co., 86 S.E. Repr. 964; Kansas City Western Ry. Co. v. McAdow, 240 U.S. 51.

Before BROWN, C.J., MESTREZAT, POTTER, STEWART, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. CHIEF JUSTICE BROWN:

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, and other cases. He called attention to the Act of Congress of April 22, 1908, (35 Stat. 65, chap. 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. 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 employees of railroad companies, when engaged in interstate commerce, the state laws must be regarded as nonexistent: Second Employers' Liability Cases, 223 U.S. 1; St. Louis, San Francisco & Texas Ry. Company v. Seale, 229 U.S. 156; Kansas & Texas Ry. v. Taylor, 232 U.S. 363; Wabash Railroad Company v. Hayes, 234 U.S. 86; 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.

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 collarbone 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, 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 employee 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...