Pennsylvania R. Co. v. Knox

• Decision Date: 04 January 1915
• Docket Number: 1880.
• Citation: 218 F. 748
• Parties: PENNSYLVANIA R. CO. v. KNOX.
• Court: U.S. Court of Appeals — Third Circuit

218 F. 748

PENNSYLVANIA R. CO. v. KNOX.

No. 1880.

United States Court of Appeals, Third Circuit.

January 4, 1915

James R. Miller, of Pittsburgh, Pa., for plaintiff in error.

H. Fred Mercer, of Pittsburgh, Pa., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

J. B McPHERSON, Circuit Judge.

This suit (which was tried before the late Judge Young and a jury) was brought by the administrator of James C. Campbell, a freight brakeman in the employ of the Pennsylvania Railroad Company, who was killed in the discharge of his duty on October 1, 1910. His death was the result of injuries caused by the twisting off of a brake rod, and (although several acts of negligence are charged in the statement of claim) the only negligence that was insisted on at the trial and in this court is the company's failure to inspect and repair. The action is brought under the Carriers' Liability Act of 1908 as amended in 1910, and the plaintiff was therefore obliged to sustain the affirmative of these two propositions:

(1) That the injury causing death occurred while the deceased was employed in interstate commerce; and

(2) That the company was negligent in the particular charged.

The facts are as follows:

Campbell lived at Derry, Pa., 46 miles east of Pittsburgh, on the main line of the railroad. Part of his usual duty was to assist in the transportation of coke from the coke regions of Westmoreland county to Coleman Yard, on the Allegheny division of the railroad, a point in Pennsylvania 7 miles east of Pittsburgh. At Coleman the coke was taken charge of by another engine and crew and was carried forward in the direction of its ultimate destination, which was ordinarily a point in New York. After the coke was delivered at Coleman it became Campbell's duty to perform whatever services might be required of him during the remainder of the day. On the morning of October 1st he and the other members of his crew, with an engine and caboose, went first to Pitcairn Yard, 15 miles east of Pittsburgh on the main line, proceeded thence to the Alexandria branch of the railroad, and took charge there of a train of loaded coke cars that was destined to New York, and moved it to Coleman. At this point Campbell and his crew detached their engine and caboose, and turned to other duties. These duties took them east 5 miles along the Allegheny Valley division to Verona Yard, where they attached their engine and caboose to about 25 loaded and empty cars-- some of them box, and some of them open, cars-- and hauled them to Pitcairn, arriving about 11 o'clock in the evening. Campbell received his injury while they were backing these cars upon a yard track, where they were to be left for the night.

If there was nothing else in the case, the contention could hardly be made that interstate commerce was being carried on while cars whose starting point and destination were unknown were being shifted from Verona to Pitcairn, two points in the same state; and the plaintiff, recognizing this difficulty attempted to meet it by offering further evidence. Testimony was offered to this effect: Among the cars in question were 8 that had been unloaded in New York several days before, and had been delivered in that state to the Pennsylvania system, to which they all belonged. According to railroad regulations and practice these cars were all 'at home'-- that is, in the hands of the owner-- as soon as they were delivered and accepted at any point on the Pennsylvania system. As already stated, all of them had been so delivered in New York; but we are not specially concerned with them until they crossed the line between the states. They arrived in Pennsylvania by different routes, but in all that is now important the facts concerning them are alike. Two of them crossed the line from Red House, N.Y., to Brookville, Pa., and the evidence was uncontradicted that they were then at the orders of the local agent at this point for any use or for any load. As he had no use for them at Brookville, they became part of a new train, with a new crew and a new engine, and were moved to Oil City, Pa., where they were again at the service of the local agent. He had no use for them, and again they became part of a new train, with a new crew and a new engine, and were moved to Phillipston, Pa., where they stopped for the third time and were again available for any use or load. The agent at Phillipston having no occasion to use them, they once more became part of a new train, with a new crew and a new engine, and went forward to Verona, where they took their place with many other loaded and empty cars, all awaiting assignment and use. Finally, at Verona, they were put into a new train, and here they joined the 6 other cars referred to. These also were Pennsylvania system cars, and had come from New York by different routes in different trains. They crossed the line from Olean, N.Y., to Irvineton, Pa., where they came to rest and were available for any use. From Irvineton they went on to Oil City, Pa., and from Oil City to Verona, under the same conditions as the 2 cars first spoken of. As already stated, Campbell's crew and engine took hold of these 8 and about 17 other cars at Verona in order to move them to Pitcairn, where they were to be left for the night and would all be available for such use as the railroad company might desire. At no time during the foregoing movement of the 8 cars in question was any one of them destined to a particular place or for a particular use, except that all of them were being moved from time to time to the next railroad point where such cars were usually assembled for distribution and use. None of these cars moved forward upon a card stating a destination or upon a bill of lading.

The company admitted that Campbell was engaged in interstate commerce during the morning of October 1st, from the time he left Derry until his engine delivered the loaded coke cars at Coleman, but denied that he was so employed during the remainder of the day. Neither side asked to have this dispute submitted to the jury, and it is probable that both sides took it for granted that the judge would decide it himself. At all events he did decide it, saying to the jury:

' * * * That the facts warrant a finding that the defendant company and Campbell were engaged in interstate commerce at the time of the accident and the time of the alleged injury to Campbell, so that you need devote no attention to that question. I want to put that squarely to you, so that the court may have control of it hereafter. Therefore you need spend no time upon the evidence submitted as to

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