Lizzie Troxell v. Delaware, Lackawanna Western Railroad Company, No. 854

• Court: United States Supreme Court
• Writing for the Court: Day
• Citation: 57 L.Ed. 586,227 U.S. 434,33 S.Ct. 274
• Parties: LIZZIE M. TROXELL, Administratrix of the Estate of Joseph Daniel Troxell, Deceased, Plff. in Err., v. DELAWARE, LACKAWANNA, & WESTERN RAILROAD COMPANY
• Docket Number: No. 854
• Decision Date: 24 February 1913

227 U.S. 434 33 S.Ct. 274 57 L.Ed. 586 LIZZIE M. TROXELL, Administratrix of the Estate of Joseph Daniel Troxell, Deceased, Plff. in Err.,

v.

DELAWARE, LACKAWANNA, & WESTERN RAILROAD COMPANY.

No. 854. Argued January 14, 1913. Decided February 24, 1913.

Page 435

Mr. George Demming for plaintiff in error.

Messrs. James F. Campbell, Daniel R. Reese, J. Hayden Oliver, and William S. Jenney for defendant in error.

[Argument of Counsel from pages 435-438 intentionally omitted]

Page 438

Mr. Justice Day delivered the opinion of the court:

This case was brought in the circuit court of the United States for the eastern district of Pennsylvania under the Federal employers' liability act, as amended (35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1911, p. 1322; 36 Stat. at L. 291, chap. 143, U. S. Comp. Stat. Supp. 1911, p. 1324), by Lizzie M. Troxell, administratrix of the estate of Joseph Daniel Troxell, deceased, against the Delaware, Lackawanna, & Western Railroad Company, to recover for the alleged wrongful death of decedent. A verdict was rendered by the district court, which had succeeded the circuit court, in favor of the plaintiff, and judgment entered accordingly, which, on writ of error, was reversed by the circuit court of appeals for the third circuit. 200 Fed. 44. The case was then brought here upon writ of error.

It appears from the record that the defendant railroad company operates a line of road running from Nazareth to Portland, Pennsylvania, and that a branch road, known as the Pen Argyl Branch, puts off in a northeasterly direction from Pen Argyl Junction, a point on the defendant's line. Between 100 and 150 yards northeast of Pen Argyl Junction there is a switch running off the Pen Argyl Branch, called Albion Siding No. 2, which extends to certain quarries in that vicinity. The switch track is level, or practically so, for the first 100 feet, and then rises towards the northeast with a grade of 1 foot in 100 feet. From the place where the Albion switch connects with the Pen Argyl Branch down to the main track, and then westward on the main track, there is a down grade. Six gondola cars, each about 36 feet in length, loaded with ashes, had been placed on the Albion spur by the

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train crew of which Troxell was the fireman, he at that particular time acting as engineer, two days before the happening of the injury hereinafter described. The night before the injury the yard shifter and crew had moved the cars a considerable distance further on the spur from the junction of the siding with the branch and on the up grade. The next morning, at about half-past 7 o'clock, these cars were seen to be running rapidly down grade toward the point where the collision occurred. The decedent, Troxell, then engaged as fireman in propelling a train eastwardly, consisting in part of interstate cars and freight, was, at the time, working on the tender of the engine, and when the runaway cars, going at great speed, collided with the locomotive, he was buried under the wreck and killed.

Lizzie M. Troxell (now the administratrix of his estate) brought a previous action, suing as surviving widow, and joining the two living children, against the defendant railroad company for damages, stating that at the time of the injury, July 21, 1909, the deceased was engaged in the capacity of fireman on a locomotive hauling one of the defendant's trains in interstate and foreign commerce, and that while so engaged, without fault on his part, and because of the negligence of defendant, and its failure to supply and keep in good condition proper and safe devices, instruments, and apparatus, the locomotive and train came into violent collision with several runaway cars, resulting in the death of Troxell, and she prayed damages on account of herself and the children. She recovered a verdict, and judgment was rendered in her favor, which, upon writ of error, was reversed by the circuit court of appeals for the third circuit. 105 C. C. A. 593, 183 Fed. 373.

Thereafter, having been appointed administratrix of the estate of her husband, Lizzie M. Troxell began the present action in the circuit court of the United States.

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This action was specifically brought under the Federal employers' liability act. The petition charged that the defendant was a common carrier engaged in interstate transportation; that Troxell, deceased, was a fireman, engaged in that capacity upon a locomotive and train engaged in carrying interstate and foreign commerce, and charged that because of the negligence, carelessness, and oversight of the defendant, and its failure to supply and keep in good condition proper, necessary, and safe devices, instruments, and appliances, the locomotive and train came into violent collision with several loose and runaway cars, causing Troxell's death; and the plaintiff, administratrix, as aforesaid, prayed damages, setting...