Mellon v. Weber
| Citation | 152 N.E. 753,115 Ohio St. 91 |
| Decision Date | 25 May 1926 |
| Docket Number | 19442 |
| Parties | Mellon,, Dir. Genl. Of Rds., v. Weber. |
| Court | United States State Supreme Court of Ohio |
Negligence - Federal Employers' Liability Act - Question for jury - Whether injuries received in interstate or intrastate commerce - Brakeman placing interstate cars, clearing warehouse track of intrastate cars - Instructions for jury to return special findings of fact mandatory, when - Section 11463, General Code - Refusal to submit interrogatory prejudicial error, when.
Where upon a trial for damages for personal injuries under the federal Employers' Liability Act, there is an issue whether the plaintiff, a brakeman, was engaged in interstate or intrastate commerce, the evidence tends to show that such brakeman is employed in moving, within a railroad yard loaded cars which are in use in interstate commerce, and after commencing such movement, before final delivery of such interstate cars, such work is suspended a short time to enable the crew to remove certain empty cars from a" warehouse track for the purpose of placing on such warehouse track the interstate cars, in the position then occupied by the empty cars, and also for the purpose of carrying out orders to transport such empty cars to another point in the same state in intrastate commerce, and said brakeman is injured just as he is in the act of going upon the warehouse track to secure the empty cars for both of the above-named purposes, a motion for a directed verdict finding that the brakeman is engaged in intrastate commerce should be denied and the question submitted to the jury under proper Instructions.
Section 11463, General Code, requiring the court, on the request of either party, to instruct the jurors, if they render a general verdict, specially to find upon particular questions of fact stated in writing, and to render written findings thereon, is mandatory in character, provided such questions require answers which establish probative facts from which an ultimate material fact may be inferred as a matter of law. A refusal to submit such an interrogatory to the jury, when properly requested, for an answer thereto in the event a general verdict is rendered, is prejudicial error.
This is a proceeding in error to reverse the Court of Appeals of Mahoning county. The record discloses that Fred W. Weber, on January 27, 1919, sustained an injury at Braddock, Pa., while working for the Baltimore & Ohio Railroad Company, then under government control. In April following he began an action under the federal Employers' Liability Act , in Mahoning county, in this state, to recover damages. At the September term of the common pleas court of that county, in 1921, he recovered a verdict for $46,500. A new trial was granted upon motion of the railroad company, upon the ground that the verdict was excessive. However, the railroad company prosecuted error to the Court of Appeals and to this court, seeking a judgment in its favor on certain interrogatories answered by the jury. This proceeding resulted adversely to the railroad company, and the case was tried a second time in the court of common pleas of Mahoning county, resulting in a verdict in favor of Weber for $20,000. Error was prosecuted to the Court of Appeals, and the judgment was reversed, upon the weight of the evidence. Upon a third trial a verdict of $34,000 was recovered by Weber. Error was prosecuted to the Court of Appeals, which court affirmed the common pleas court, and error is now prosecuted in this court to reverse that judgment.
The facts, in so far as they are material, may be stated as follows:
On the 26th day of January, 1919, some boys had been playing in the freight yards of the railroad company at Braddock, Pa. A part of their play had been to use a heavy plank in sliding or other boyish pursuits, and they had allowed one end of the plank to protrude over the track nearest the freight platform. They had been warned away by the watchman, and also by the track walker, `jut apparently had returned on each occasion; the last warning being approximately 6 o'clock in the evening. On the morning of the 27th, about 2 o'clock, Weber and his fellow members of the yard crew were engaged in bringing three loaded cars, concededly engaged in interstate commerce, from a point known as Bessemer, or the transfer yard, to be placed upon the No. 1 or house track, next to the freight house. Upon arrival at Braddock, a second order was received by the freight crew, given to the conductor, Culp, to take three empty cars that had been standing on the No. 1 or house track, at the west end thereof, near the freight office, and remove them to Demmler, another station in the state of Pennsylvania, not far from Braddock. With these two orders, Culp and the yard crew, including Weber, proceeded to a point east of Ninth street in Braddock, where the switch from the lead track to the house is located. A so-called flying switch was made, leaving the three loaded cars on the lead track, while the engine proceeded along the house track preparatory to securing the three empty cars ordered to be taken to Demmler. Weber and his fellow brakeman, Beisel, were standing on the front running board of the switch engine; Weber being on the same side as the platform. The engine had proceeded but a short distance up the house track when Weber's leg came in contact with the plank protruding over the track, resulting in a severe injury to Weber, to recover for which he brings this action for damages.
He claims in substance that he received his injury in the course of his employment while engaged in interstate commerce, and hence comes within the purview of the federal Employers' Liability Act; that the defendant company was negligent in not maintaining a sufficient headlight, and further, in carelessly permitting the plank to extend across the track in such manner as to prevent free passage of an engine, without indicating the existence of the plank at that point by any signal or warning or informing the plaintiff thereof.
The defendant railroad company denied its liability in the premises, denied the jurisdiction of the court under the federal Employers' Liability Act, averred that the plaintiff was familiar with the risks and hazard of his employment, and that by his own negligence, in failing to use his senses to observe the danger, he directly and proximately caused the injury of which he complains.
A reply was filed and issues joined. A verdict was returned for the plaintiff, as above set forth, judgment rendered thereon, and affirmed by the Court of Appeals, and error is now prosecuted to this court to reverse said judgment.
Messrs. Barrington, De Ford, Huzley & Smith, for plaintiff in error.
Mr. John Ruffalo, and Mr. Clinton J. Wall, for defendant in error.
While several grounds of error are urged by the plaintiff in error we shall consider but two: First. Was there jurisdiction in the court below to hear this action, under the federal Employers' Liability Act? Second. Is there error in the record because of the failure of the court to submit to the jury interrogatories at the request of the railroad company, pursuant to Section 11463, General Code?
This record discloses conflicting claims of the parties relative to the placing of the three loaded ears at the point upon the house track where the three empty cars had been standing, which empty cars were to be taken over to Demmler in intrastate traffic. Weber claims, and there is testimony corroborating his claim, that Culp, the conductor, told him that the three loaded or interstate cars were to be placed upon the same position on the house track as the three empty cars. Culp does not admit this, but claims that the three loaded cars were to be placed at any point upon the house track available for unloading. This question was put to the jury in the general charge of the trial court, after explaining the meaning of interstate traffic, by his instruction that, if they found the plaintiff Weber was not engaged in interstate a traffic at the time of his injury, he could not recover, and their verdict should be for the railroad company. The finding of the jury upon this point must have been favorable to Weber, and we must therefore assume that they believed that the three loaded cars, engaged in interstate traffic, were to be placed upon the house track in the same position as the three empty cars about to be used in intra-state traffic, and that it was necessary to remove the empty cars in order to place the loaded interstate cars in their final destination.
In the handling of freight and in general railroad work in a freight yard the operations of employees are of both intrastate and interstate character, constantly changing from one to the other, and the question becomes one of fact, whether at the particular time of the injury the employe was engaged in interstate commerce or in work so intimately connected with interstate commerce as to be practically a part of it, or was at the particu- lar time in question engaged in work intrastate in character. If the operation is a mixed one, and the employe is engaged at the time in both classes of commerce, then we feel that the federal rule should dominate; and, applying this principle to the situation before us, it is apparent that before the three loaded cars could be placed upon the house track in the position of the three empty cars the latter would have to be moved. On the other hand, upon moving said empty cars such act became the first step in the inducting of said empty cars into intrastate traffic; that is, it was the first movement in taking the cars to...
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