Philadelphia, B. & W. R. Co. v. Gatta

• Court: United States State Supreme Court of Delaware
• Writing for the Court: WOOLLEY, J.
• Citation: 85 A. 721,4 Boyce 38
• Parties: PHILADELPHIA, B. & W. R. CO. v. GATTA.
• Decision Date: 22 January 1913

85 A. 721
4 Boyce 38

PHILADELPHIA, B. & W. R. CO.
v.
GATTA.

Supreme Court of Delaware.

Jan. 22, 1913.

85 A. 722

Error to Superior Court, New Castle County. Action by Frances T. Gatta against the Philadelphia, Baltimore & Washington Railroad Company for damages for death of her husband, alleged to have been occasioned through the negligence of the defendant company. Verdict for plaintiff. Defendant brings error. Affirmed.

See same case, 1 Boyce, 293, 76 Atl. 56.

Argued before CURTIS, Ch., PENNEWILL, C. J., and WOOLLEY, J.

Ward, Gray & Neary, of Wilmington, for plaintiff in error.

Horace G. Eastburn, of Wilmington (Anthony Higgins, of Wilmington, on the brief), for defendant in error.

The court stated the case as follows:

On the trial before the Superior Court for New Castle county, in which a verdict was rendered for the plaintiff, it appears from the testimony, as disclosed by the record, that Charles Gatta, the plaintiff's husband, was, on the day of the injury that caused his death, and for a considerable period theretofore had been, in the employ of the Pullman Company at its car works in the city of Wilmington; that the premises of the Pullman Company were located on the easterly side of and adjoining the elevated tracks of the main line of the defendant railroad company, its buildings and shops were situated some distance southerly therefrom, and between the elevated tracks of the railroad company and the shops of the Pullman Company there was an inclosed yard; that within this yard, placed parallel with the shops of the Pullman Company and the elevated structure of the railroad company,

85 A. 723

were three railroad tracks, which were designated and known as tracks A, B and 0, A being the one nearest the shops, C the one nearest the elevated road and furthest from the shops, and B the one between the other two; that these tracks were connected at or about the entrance to the yard with tracks and sidings belonging to the railroad company, which further on were connected with its main line of railway; that tracks A, B and C, as well as the yard within which they were located, were the private property of the Pullman Company, upon which Pullman cars stood while being repaired, and over which the railroad company shifted Pullman cars in delivering or receiving them in its business of transportation.

It appears that between the shops and track A there was a wooden platform or flooring and a like platform or wooden passageway between tracks A and B, and that the distance between the shops and track A was about eight or nine feet, and that a heavy wooden fence, six or seven feet high, divided the end of the yard from Twelfth street, somewhat obstructing the view beyond the yard. It is further shown that, on the morning of the accident, five Pullman coaches were standing on track A, at least three of which were uncoupled and stood at short distances apart from each other, that two or more were on track B and that at least one was on track C; that upon that day Gatta was working in what was known as the washstand and hopper gang, and a few minutes prior to his death had been making repairs to, a hopper in a car on track B; that approximately five minutes before the injury he left this car for the purpose of seeing his foreman, Cooney, who was in a shop a short distance east of track A; that in going from the car on track B to see his foreman, it was necessary for Gatta to cross track A; that some time on the morning of the accident a shifter had worked on track C, after which it left track C and went out of the yard; that while Gatta was in the shop the shifter approached the yard upon or toward track A, preparatory to doing shifting on that track, and stopped either outside of the yard or partly without and partly within the yard; that while Gatta was still in the shop, the crew of the shifter, which was owned and operated by the defendant railroad company, caused notice to be given that shifting was about to be done on track A, by ringing the bell and by having one of its crew and one of the Pullman employes pass along each side of track A calling, "Look out on track A;" that this warning was given from two to four minutes before Gatta and Cooney came out of the shop on their way back to track B, but whether it was given before or after Gatta went into the shop is a matter of dispute. By some witnesses it was testified that the warning was repeated down to the time of the injury in such a manner that Gatta could and should have heard it By others it was testified that no warning was heard after that given at a time when Gatta was in the shops and out of hearing.

It further appears that from the time Gatta left the building until he started between the cars, the cars were still, and while passing between them, Gatta stopped to let some one pass above him from the platform of one of the cars to the platform of the other, and as he afterward proceeded, the shifter caused the cars to come together and he was crushed.

It was shown that upon several of the buildings of the Pullman Company the following notice was posted: "Notice. Employes must not work under cars or on scaffolds or ladders inside of cars or pass between cars while cars are being shifted in the yard. John Cannon, Manager." As to the observance of this rule, witnesses testified in substance that they knew of the existence of the rule, but never paid much attention to it, for while it was a general rule applying to all within the yard, it was likewise generally understood to apply only to those working on or about the track with respect to which warning had been given and that men working on cars on other tracks were expected to keep right on working, in a knowledge that the danger was not on their tracks.

WOOLLEY, J., after stating the case, delivered the opinion of the court.

The errors charged to have been committed in the trial of this case by the court below are 28 in number, of which errors assigned in specifications No. 21 to No. 28, inclusive, relate to the court's refusal to grant a motion for a new trial.

In the practice and policy of the law of this state relative to new trials, a motion for a new trial is a matter addressed to the legal discretion of the court (Fitzgibbon's Adm'r v. Kinney, 3 Har. 72, 73; State v. Layton, 3 Har. 469, 480), and to the decision of the court upon such a motion, as to the decisions of the court generally upon rules to show cause, a writ of error will not lie. Burton v. P., W. & B. R. R. Co., 4 Har. 252, 254; Mitchell v. Woodward, 2 Marv. 311, 313, 43 Atl. 165; Valley Paper Co. v. Smalley, 2 Marv. 289, 294, 295, 43 Atl. 176; Ridings v. McMenamin, 1 Pennewill, 15, 39 Atl. 463; Whitaker v. Parker, 2 Har. 413, 416.

To the refusal of the court to grant a new trial, the record discloses no exception noted by the defendant below or allowed by the court below, nor does the defendant below, now the plaintiff in error, charge to the court below any abuse of its discretion or misconduct in rendering its decision against the motion, that might take the case out of the general rule against reviewing as error the decision of a trial court in a matter addressed

85 A. 724

purely to its legal discretion. Therefore, nothing that is assigned as error in the last 8 assignments of error, that is not also embraced in some preceding assignment of error, will be considered in this decision.

Charles Gatta was killed on the 28th day of June, 1907. This action was instituted by his widow on the 9th day of August, 1907, the original declaration was filed on the 8th day of August, 1908, and the amended declaration on the 21st day of January, 1910.

In the original declaration, the plaintiff averred that the deceased was an employe of the defendant company, charged the defendant company with the duties of a master, alleged breaches thereof and sought to recover upon its liability therefor. In the amended declaration, the plaintiff averred that the deceased was an employe of the Pullman Company, charged the defendant company with the duties it owed a stranger, alleged breaches thereof and sought to recover upon its liability for a violation of its duties in that relation.

It thus appears that while each declaration states a cause of action growing out of the same circumstances from which the deceased met his death, the material averments of the two declarations differ, and it also appears that the difference in point of law, consists in the difference in the relations alleged by the two declarations to have existed between the deceased and the defendant, the corresponding difference in duty which the defendant is charged to have owed the deceased and the consequent difference of the defendant's liability for breaches of that duty.

The amended declaration being the one exclusively relied upon at the trial, the defendant moved that the jury be instructed to render a verdict in its favor, upon the ground that the amended declaration presented a cause of action wholly new and wholly different from the one presented by the original declaration, that the amended declaration thus presenting a new cause of action was filed after the expiration of one year from the date upon which the injuries to the deceased were sustained, or at a time when an original action upon the cause of action therein stated would have been barred by the statute of limitations, and therefore recovery upon the cause of action stated by the amended declaration was likewise barred.

The act limiting actions for personal injuries relied upon in support of this motion, provides, that "no action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of one year from the date upon which it is claimed that such alleged injuries were sustained." Chapter 594, volume 20, Laws of Delaware.

The refusal of the trial court to grant this motion is assigned as error and is here submitted for review.

The...