Illinois Cent. R. Co. v. Porter

• Decision Date: 30 June 1913
• Docket Number: 2,337.
• Citation: 207 F. 311
• Parties: ILLINOIS CENT. R. CO. et al. v. PORTER.
• Court: U.S. Court of Appeals — Sixth Circuit

207 F. 311

ILLINOIS CENT. R. CO. et al. v. PORTER.

No. 2,337.

United States Court of Appeals, Sixth Circuit.

June 30, 1913

[Copyrighted Material Omitted]

Fitzhugh & Biggs, of Memphis, Tenn. (Chas. N. Burch, of Memphis Tenn., of counsel), for plaintiffs in error.

Anderson & Crabtree, of Memphis, Tenn., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

This suit was brought to recover damages for negligent injuries resulting in the death of decedent, Griff Barton, while engaged as a trucker in loading freight into a car for transportation in interstate commerce. The negligence alleged is that of a fellow servant of deceased, also a trucker engaged in loading the same car, and consisted in carelessly running a heavily loaded truck against decedent and crushing him against the side of the car. The declaration was demurred to as showing on its face that decedent's injuries were due to the negligence of his fellow servant. The demurrer was overruled, and pleas of not guilty and contributory negligence were filed. There was trial to a jury, and verdict and judgment for plaintiff.

1. There was no error in overruling the demurrer. The declaration stated a case under the Employer's Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. Supp. 1911, p. 1322)), unless in failing to allege pecuniary injury to the next of kin. Under that act the negligence of decedent's fellow servant was the negligence of defendant. The declaration alleged that deceased left a father, two sisters, and a brother, all of whom were named. The natural inference would be that suit was brought for their benefit. The cause of action arose since the 1910 amendment (adding section 9) to the Employer's Liability Act (Act April 5, 1910, c. 143, Sec. 2, 36 Stat. 291 (U.S. Comp. St. Supp. 1911, p. 1325)), by which amendment the right of action given the injured employe was made to survive to his personal representative for the benefit of the same relatives for whose pecuniary loss recovery is provided by section 2 of the act. It is true that previous to that amendment recovery was limited to compensating such relatives as are shown to have sustained pecuniary loss by the death (Mich. Central R. Co. v. Vreeland, 227 U.S. 59, 33 Sup.Ct. 192, 57 L.Ed. 417; American R. Co. v. Didricksen, 227 U.S. 145, 33 Sup.Ct. 224, 57 L.Ed. 456), and that the apportionment of damages should be made by the jury (Gulf, Colorado, etc., R. Co. v. McGinnis, 228 U.S. 173, 33 Sup.Ct. 426, 57 L.Ed. 785); and we have held in such case that where parents or next of kin are beneficiaries it is necessary that the declaration contain an averment of pecuniary loss (Garrett v. Louisville & Nashville R. Co., 197 F. 715, 722, 117 C.C.A. 109). Yet, whatever may be the effect of the amendment of 1910 (a question we are not called upon to consider, in view of the theory on which the case was tried below and the fact that no error is assigned upon the instructions as to the measure of damages), and assuming, for the purposes only of this opinion, that the rules above stated would apply to the surviving right of action of deceased, we think the defect urged was not fatal.

The objection that pecuniary injury to one or more of the relatives named was not alleged was not raised either by demurrer or upon the trial. Had the objection been so raised, the declaration would have been readily amendable. No motion in arrest of judgment was made; but, had it been made, the motion would not have been good. The point under consideration appears to have first occurred to counsel after the decision of the Supreme Court in the McGinnis Case. As a matter of fact, the testimony tended to show pecuniary injury to decedent's father. While the measure of damages was not confined to such pecuniary injury, no error is assigned in this respect. The suit was brought by the only party plaintiff who could recover for the death of deceased, and the recovery barred further action for the same cause. We find nothing to the contrary of this conclusion in the Tennessee cases cited, ^[1] or in the decision of this court in Atlanta, etc., Ry. Co. v. Hooper, 92 F. 820, 35 C.C.A. 24. We have not here a case of total failure to state the existence of statutory beneficiaries.

2. In loading the car in question the trucks were run over an iron apron extending from the floor of the freight warehouse to and upon the floor of the car, thus covering whatever distance and inequality might exist between the floors of the car and warehouse. A turn had to be made by the trucker just before crossing the apron. Several truckers were employed at the time in loading the car. The testimony tended to show that, as deceased was about to enter the car with his truck, he encountered a trucker inside the car about to come out, as we assume from the testimony; that, in order to avoid collision with the trucker in the car, decedent swung his truck to one side, got off the apron, and stood in the warehouse, beyond the doorway of the car, and practically against its side; that while decedent was in this position a fellow truckman, wheeling a heavy hogshead and coming at full speed, pushed his truck against decedent, crushing him against the side of the car. The evidence was sufficient to support a conclusion that the fellow truckman negligently collided with decedent. Upon cross-examination, an eyewitness to the collision gave an affirmative answer to the question:

'And what was going on at this time was just the usual and ordinary way that the business was operated there?'

Also this testimony was given on cross-examination:

'Q. When they are trucking there, carrying freight, several of them, into the cars, why, they are in the habit of taking these trucks into it, when others are in the way of the car, just like they were doing this time? I say they were going back and forth over this apron all the time? A. Yes, sir. Q. This was just exactly like it was under ordinary circumstances, usual and ordinary way of doing it? A. Yes, sir.'

The denial of a motion for directed verdict is assigned as error on the ground that the risk which resulted in decedent's injuries was the usual and ordinary risk incident to the method of employment, and that the assumption of such risk is not abrogated by the federal Employer's Liability Act. There was no error in refusing a peremptory instruction. In Southern Ry. Co. v. Gadd, 207 F. 277 (decided May 6, 1913), we held that even at common law the employe did not assume the risk of the employer's negligence from an unusual and unexpected method of operation; that is to say, not incidental to the ordinary method. Evidence that the work was being done at the time in question 'in the usual and ordinary way' was not evidence that negligent conduct such as charged in this case was the usual and ordinary method of doing the business. The natural inference would be that such negligence of a fellow trucker was outside the usual and expected. The risk of such negligence was not, in our opinion, assumed by decedent, and this without reference to any construction of the Employer's Liability Act. The defendant's requests based upon the theory of such...