Marian Looney v. Metropolitan Railroad Company

Decision Date19 February 1906
Docket NumberNo. 173,173
Citation26 S.Ct. 303,50 L.Ed. 564,200 U.S. 480
PartiesMARIAN J. LOONEY, Administratrix of the Estate of James F. Looney, Deceased, Plff. in Err. , v. METROPOLITAN RAILROAD COMPANY and Washington Railway & Electric Company
CourtU.S. Supreme Court

Messrs. Maurice D. Rosenberg, Alexander Wolf, and Simon Lyon, for plaintiff in error.

Mr. J. J. Darlington for defendants in error.

Mr. Justice McKenna delivered the opinion of the court:

Action brought by plaintiff as administratrix of the estate of James F. Looney, deceased against the defendants, for damages for the death of her intestate, alleged to have been caused by defendants. Judgment went against plaintiff in the supreme court of the District of Columbia, which was affirmed by the court of appeals.

After the plaintiff had rested her case the court directed the jury to return a verdict for the defendants. The correctness of this ruling is the question in the case.

The declaration consists of four counts. The first three allege the employment of the deceased by each of defendant companies respectively. In the fourth the allegation is that he was rightfully and lawfully in the discharge of his duties.

Looney was employed as a 'pitman' by the Washington & Great Falls Railroad Company (now the Washington Railway & Electric Company), and was, on the day of his death—July 28, 1901—in one of the 'plow pits' located on the lines of the company, near its terminus at Thirty-sixth street and Prospect avenue northwest.

The Metropolitan Company's line connects at this point with that of the Great Falls line. The latter company uses the overhead system. By this system the power is conveyed to the car by means of a 'trolley pole' attached to the top of the car and made to touch the trolley wire when used to propel the car. The Metropolitan Company uses the underground system by means of a 'plow,' so called, projecting through a slot in the tracks to an underground current. The two companies have a trackage arrangement, whereby the cars of the Metropolitan Company run over the line of the other company. The cars of the Metropolitan Company, therefore, are equipped not only with a 'plow' and mechanism for the underground system, but with a trolley pole and mechanism for an overhead system. To attach these mechanisms to their respective systems it is necessary to run a car over an excavation on the line of the Great Falls Company known as the 'pit.' The 'pitman' is thus emabled to remove the 'plow' from a car to be transferred from the Metropolitan line to the Great Falls line, and adjust or attach the wires or 'leads' necessary for the operation of the car over the Great Falls line. While doing this Looney was killed, the plaintiff contends, through the negligence of the conductor of the car in permitting the trolley pole to come in contact with the trolley wire, whereby a current of electricity was transmitted to the motive machinery. And this is the ground of negligence charged in the declaration. In every count it is alleged 'before said intestate entered said plow pit it became the duty of the defendants, and each of them, to keep, or cause to be kept, the electric current so cut off from said pit as not to injure the said intestate; and the plaintiff says that said intestate, having entered said pit in obedience to said direction to him as aforesaid, said defendants negligently failed to keep, or cause to be kept, cut off, as aforesaid, said electric current from said pit while said intestate was therein for the purpose aforesaid, whereby and by reason of said negligence the said intestate was so severely shocked and injured by said electric current that he almost immediately died.'

At the trial there was evidence given by the plaintiff of the arrangement between the defendant companies as to the exchange of cars, and to the relation of their respective employees. On this evidence the parties base opposing contentions, the defendants contending that the conductor and Looney were fellow servants, the plaintiff contending that they were not. Both of the lower courts sustained the contention of the defendants. The court of appeals beside intimated a belief that the testimony on behalf of plaintiff rather tended to show accident than negligence. If this be so, or if the evidence fails to establish whether the death was caused by accident or negligence, the judgment should be affirmed, and it will be unnecessary to decide whether Looney and the conductor were fellow servants. We will assume, for the purposes of the case, that they were not fellow servants.

The accident was seen by two persons, Margaret Mawson and Helen Gertrude Coon. The former testified that she was sitting in her room on the second floor of her house, which is on Prospect avenue, 75 feet or more from the 'pit.' She saw the car turn the curve from Thirty-sixth street into Prospect avenue, and 'that the trolley pole was up and the trolley wheel against the overhead wire, all the time after the car got into Prospect avenue until it stopped over the pit; that while the car was coming from Thirty-sixth street down to the pit she saw Looney, the deceased, enter the pit through the south trapdoor. That after the car stopped over the pit she saw him go up under the car and take the plow off. That after he took the plow off she saw him go up under the car again and put the wires up in the car to connect with the overhead trolley, and that while he was in that position she heard him holler and drop down, and the motorman turned and said 'For God's sake, fix that trolley!' and the conductor then pulled the trolley down, but did not before that time. . . . That the accident did not happen until after the car stopped and the deceased had removed the plow and had gone up under the car again and was putting up the wires. That she saw the movements of the deceased under the car through the trapdoor. That she could see his hands taking off the plow; could see nothing but his hands then; that after he took off the plow and went up under the car, she could see a part of his body above the surface of the street. That the pit was deep enough for a man to stand up in; that she heard no bell ring, nor signal of any sort; her hearing was good enough to hear a bell if one had been rung. That he had to use his hands to remove the plow and also put the overhead current on, and she saw him twist his hands when he got the shock.'

Helen Gertrude Coon testified that she was a daughter of the preceding witness and lived with her; that she saw the accident from the front porch of the house, which was about on the level with the sidewalk of Prospect avenue. She saw the car run around the curve from Thirty-sixth street, come down the avenue, and stop over the pit. She was not certain whether the pole was touching the wire before the car stopped over the pit, but the pole was touching the wire or came in contact with it while deceased was taking off the plow. 'That her attention was directed to the fact of the trolley being in contact with the wire from the fact that the deceased gave a groan, and the motorman said 'For God sake, pull that trolley down!' That some one said 'Pull the car off the pit!' That she saw deceased take the plow off and then go up under the car to throw the overhead current on. That after he took the plow off and was putting the overhead current on, she heard him groan. That she heard no bells or signals given. That he had to use his hands to remove the plow and also to put the overhead current on, and she saw him twist his hands when he got the shock. That she saw all this while looking under the car from where she was sitting on the porch. That they took the body up out of the pit over which the car had been standing.'

A passenger on the car testified that he heard one bell ring, and...

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