Pennsylvania R. Co. v. Glas

• Decision Date: 04 January 1917
• Docket Number: 2171.
• Citation: 239 F. 256
• Parties: PENNSYLVANIA R. CO. v. GLAS.
• Court: U.S. Court of Appeals — Third Circuit

239 F. 256

PENNSYLVANIA R. CO. v. GLAS.

No. 2171.

United States Court of Appeals, Third Circuit.

January 4, 1917

Rehearing Denied February 17, 1917.

John Heron, of Pittsburgh, Pa., for plaintiff in error.

D. F Anderson, of Youngstown, Ohio, for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

WOOLLEY Circuit Judge.

This is an action under the Employers' Liability Act of April 22 1908, c. 149, 35 Stat. 65, against the defendant railroad company for negligently causing the death of the plaintiff's intestate. The verdict was for the plaintiff and on judgment the defendant brought this writ of error.

The plaintiff charged the defendant with negligence, (1) in permitting the derailment of a train, (2) in operating a car with a truck in a defective condition, and (3) in failing to inspect the arch-bar of the truck. Being without evidence upon the matter of inspection, and failing to induce the court in this case between master and servant to charge the presumption of negligence arising from the fact of derailment as in a case between passenger and carrier, the case was mainly tried and submitted upon the remaining allegation of the defendant's negligence in operating a car with a defective truck after it had time and opportunity to learn of it.

It was conceded that the intestate was injured while a brakeman on one of the defendant's freight trains; that at the time of his injury he was employed in interstate commerce; and that his death was caused by the derailment of a portion of the train upon which he was riding. The evidence tended to show that the derailment was due to the breaking of an arch-bar of one of the trucks; that the arch-bar was defective; that the defect had existed for a long time and should have been known to the defendant; and that its negligence in operating a car with such defective arch-bar was the proximate cause of the injury.

An arch-bar is a steel bar or truss several feet long, about five inches wide and one inch thick. It is connected with the truck and supports the car. A broken arch-bar, alleged to be the one that caused the derailment, was found after the accident. It was discovered, that at the point at which it broke, there was an old break or crack, extending across its entire breadth and one-half of its depth, showing by its rusted condition that it had been there three or four weeks. It does not appear in the record whether the crack was on the outside or the inside of the arch-bar when in position upon the truck, and therefore, the record does not show whether, upon inspection, it could be seen. The arch-bar, however, was described to the jury and the position of the crack was indicated to them by the witness who discovered it. In the course of his testimony, he said:

'Right where it came up like this (indicating), and then it went out over the box; it was cracked right in the end there, in the short bend.'

Just how much was before the jury that is not before us with respect to the exposed or hidden location of the break, the record leaves in doubt, but that there was something before the jury that is not before us, there is no doubt. We must therefore assume, that the matter indicated to the jury, though not disclosed by the record, was such as to support the verdict. Wagner v. Standard Sanitary Mfg. Co., 244 Pa. 310, 91 A. 353.

Although the assignments of error are addressed solely to the charge, the plaintiff in error urges as error the refusal of its motion for a directed verdict. Such a motion was made and refused, but to the court's action neither exception was noted nor error assigned. We are therefore not inclined to review the matter except as it incidentally arises in connection with one of the assignments specifying error in the charge.

While of course the question raised by the assignments of error is primarily whether the court erred in what was said to the jury upon the law, the real question arising out of this peculiar record, is not so much whether the law was erroneously stated, as it is whether from the law as stated, though correctly stated, the jury nevertheless drew an erroneous impression.

The assignments of error are directed to isolated passages in the charge, some of which, when standing alone, appear to be erroneous, but when read with the context and considered with reference to what transpired at the trial, are not, in our opinion, affected by error.

The first error assigned is to that part of the charge in which the court said:

'Now then, you must find, in order that the plaintiff should recover, that there was negligence on the part of the defendant company, either negligence on the part of its servants or employees in the operation of the train, or some defect in the cars, rails or appliances connected with the transportation of the train which resulted in the accident and death.'

It is the last phrase of this sentence that is specified as error. If separated from the rest of the charge and permitted to stand by itself, then certainly it is an erroneous statement of the law, for the defendant railroad company was not liable to the plaintiff's intestate for a defect in the cars, unless that defect was due to its negligence. But what was said in the rest of the charge? The court began with a very clear statement of the law by saying:

This is 'an action of trespass. An action of trespass is based on negligence and negligence alone, and in order for the plaintiff to recover it is the duty of the plaintiff to show that two elements exist and co-exist; that is, that the defendant company was negligent and that the injury complained of resulted from that negligence, because there may be...