Moyer v. Pennsylvania Railroad Company

• Decision Date: 02 January 1915
• Docket Number: 15
• Citation: Moyer v. Pennsylvania Railroad Company, 247 Pa. 210, 93 A. 282 (Pa. 1915)
• Parties: Moyer v. The Pennsylvania Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

93 A. 282

247 Pa. 210

Moyer v. The Pennsylvania Railroad Company, Appellant

No. 15

Supreme Court of Pennsylvania

January 2, 1915

Argued October 8, 1914

Appeal, No. 15, Oct. T., 1914, by defendant, from judgment of C.P. Washington Co., May T., 1913, No. 263, on verdict for plaintiff in case of Oscar G. Moyer v. The Pennsylvania Railroad Company. Affirmed.

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

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $8,500 and judgment thereon. Defendant appealed.

Errors assigned were instructions to the jury, answers to points the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n.o.v.

The assignments of error are overruled and the judgment is affirmed.

Rufus S. Marriner, with him Jas. A. Wiley, for appellant. -- The car which caused the injury was not being used in interstate commerce at the time of the accident, and the Act of Congress of March 2, 1893, c. 196, Sec. 2, 27 Stat. 531, does not apply: Chicago & N.W. Ry. Co. v. United States, 168 F. 236; United States v. Rio Grande Western Ry. Co., 174 F. 399; Erie R.R. Co. v. U.S., 197 F. 287; Southern Ry. Co. v. Snyder, 187 F. 492; Erie R.R. Co. v. Russell, 183 F. 722; Johnson v. Southern Pacific Co., 196 U.S. 1; Southern Ry. Co. v. U.S., 222 U.S. 20; Galveston H. & S.A. Ry. Co. v. U.S., 199 F. 891; St. Louis Iron Mountain & S. Ry. Co. v. Taylor, 210 U.S. 281; United States v. Wheeling & Lake Erie R.R. Co., 167 F. 198; Illinois Central Railroad Company v. Behrens, 233 U.S. 473; Pedersen v. Del., Lack. & Western R.R. Co., 229 U.S. 146; Central R.R. of N.J. v. Colasurdo, 192 F. 901; Southern Ry. Co. v. U.S., 222 U.S. 20; Northern Pacific Ry. Co. v. Maerkl, 198 F. 1; Lamphere v. Oregon R.R. & Nav. Co., 193 F. 248.

The plaintiff's evidence was contradictory and the jury should have been instructed that it was therefore unworthy of credence, as requested by defendant's 7th point: Black v. Philadelphia Transit Co., 239 Pa. 463; Ely v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway, 158 Pa. 233. Instructions to the jury on the measure of damages were inadequate: Baker v. Irish, 172 Pa. 528; McLaughlin v. Corry, 77 Pa. 109; Scott Township v. Montgomery, 95 Pa. 444; Smedley v. Railway Co., 184 Pa. 620; Seifred v. Railroad, 206 Pa. 399; Iseminger v. Power Co., 209 Pa. 615.

W. A. Stone, of Stone and Stone, with him W. Clyde Grubbs and Alexander M. Templeton, for appellee. -- The car was engaged in interstate commerce and the Federal Coupler Act applies: Voelker v. Chicago M. & St. P. Ry. Co., 116 F. 867; Johnson v. Great Northern Ry. Co., 178 F. 643; Johnson v. Southern Pacific, 196 U.S. 1; Southern Railroad v. United States, 222 U.S. 20; Chicago, Rock Island & Pacific Railroad Co. v. Brown, 229 U.S. 317.

Plaintiff's evidence was for the jury: Danko v. Pittsburgh Railways Company, 230 Pa. 295; Cronmuller v. Evening Telegraph, 232 Pa. 14; Black v. Philadelphia Rapid Transit Company, 239 Pa. 463; Sanson v. Philadelphia Rapid Transit Company, 239 Pa. 505.

As no exception to that portion of the charge relating to the measure of damages were taken, and no additional instructions asked for, it is too late to complain that the charge was inadequate with regard to the measure of damages.

Before MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE STEWART:

Under instructions not here complained of, the jury found that the plaintiff's injuries resulted in consequence of the car on and about which he was employed not being equipped with a coupler coupling automatically by impact, as prescribed by the Federal Statute of March 2, 1893, c. 196, Sec. 2, 27 Stat. 531, for cars used in moving the interstate traffic. The defendant is a common carrier engaged in both intra and interstate commerce. The plaintiff was one of a shifting crew in the employ of the defendant company, whose duty it was to shift cars from one yard to another, or from one place or track to another within the same yard, accordingly as directed, whether used in intra or interstate commerce. The particular car which inflicted the injury complained of belonged to a foreign company; it had been forwarded, laden with merchandise and destined to Donora, Washington County, Pennsylvania, from Logansport, Indiana. It reached Donora on 18th December, 1911. Having been there unloaded it was sent to the Carson street yard of the defendant company at Pittsburgh on the 21st, and on the day following it was shifted to the company's yard at 30th St., in Pittsburgh? Within a short time thereafter this same car was loaded with glass consigned to Louisville, Kentucky, and there is nothing to show that in the meanwhile it was in any way employed. The plaintiff was injured while it was being shifted from the Carson street yard to the 30th street yard. The learned trial judge in his general charge instructed as follows:

"We say to you as a matter of law that the facts as developed on the trial show that this car was engaged in interstate commerce, and was such as brought it within the provisions of the Act of 1893." This is assigned as error, as is also his refusal to instruct in accordance with defendant's third point, which reads as follows:

"There is no evidence in this case which would warrant the jury in finding that the car which injured the plaintiff was, at the time he received his injuries, being used in interstate commerce, and there can be no recovery by the plaintiff under the Employers' Liability Act." These assignments do not call for separate consideration; together they raise but a single question. Section 2 of the Federal Statute of March 2, 1893, c. 196, 27 Stat. 531, reads as follows:

"That on and after the 1st day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate commerce not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars." The facts with respect to the employment of the car that injured the plaintiff, from the time it left Logansport, Indiana, until its return to Louisville, Kentucky, are not in dispute. The further fact that it was not equipped with such coupler as is described in the above mentioned statute may be accepted as proved since it was so found by the jury. It will be conceded, of course, that this car was employed in interstate commerce from the time it left Logansport until discharged of its freight at Donora. It will be further conceded that had it been at once returned, though empty, to the place where it belonged, it being a foreign car, it would on its return trip have been still so employed. So much has been repeatedly decided, and we need not delay to cite the cases so ruling. It is sufficient to refer to the case of Johnson v. Southern Pacific Co., 196 U.S. Page 1. This car was not started on its return for several days, and meanwhile, so far as appears in the evidence, it remained at rest in the yards of the company, except when being shifted from one yard to another, in the course of which work the accident happened. Can it be said that because it had discharged its freight and was not actually employed in transportation for two or three days following, it had ceased to be a car "used in moving interstate traffic"? The last actual use it had been put to was that of moving interstate commerce; the next use it was put to was the same; it had not been employed while remaining in charge of the defendant company in any other; it was detained in the defendant company's yards, so far as appears, only to await the company's convenience in returning it to where it belonged. With these facts established, the question, we think, admits of but one answer -- the car at the time of the accident was a car used in moving interstate traffic. The facts being as stated above, the learned trial judge committed no error in ruling as he did.

Very much of the brief...