Philadelphia & R. Ry. Co. v. McKibbin

• Decision Date: 24 June 1919
• Docket Number: 2470.
• Citation: 259 F. 476
• Parties: PHILADELPHIA & R. RY. CO. v. McKIBBIN.
• Court: U.S. Court of Appeals — Third Circuit

259 F. 476

PHILADELPHIA & R. RY. CO. v. McKIBBIN.

No. 2470.

United States Court of Appeals, Third Circuit.

June 24, 1919

Frank S. Katzenbach, Jr., of Trenton, N.J., for plaintiff in error.

Joseph A. Shay, of New York City, for defendant in error.

Before BUFFINGTON, WOOLLEY, and HAIGHT, Circuit Judges.

HAIGHT Circuit Judge.

The defendant in error recovered a judgment in the court below against the plaintiff in error for damages resulting from personal injuries which he received while in the employ of the latter, as a brakeman, in its yards at Port Reading, N.J. The action was brought under the federal Employers' Liability Act of 1908 and Supplements (Act April 22, 1908, c 149, 35 Stat.L. 65; Act April 5, 1910, c. 143, 36 Stat.L. 291 (Comp. Stat. 1916, Secs. 8657-8665)), and was based upon the alleged negligence of the defendant (the plaintiff in error) in failing to provide a car, which the plaintiff claims he was required to uncouple in the performance of his duty as a brakeman, with a workable coupler, as required by the Safety Appliance Act of March 2, 1893, c. 196, 27 Stat. 531, as amended by the Act of April 1, 1896, c. 87, 29 Stat. 85, and Act March 2, 1903, c. 976, 32 Stat. 943 (Comp. St. Secs 8605-8615), and the negligence of certain of defendant's employes in failing to stop the train, from which the plaintiff claims he was required to uncouple two cars, when signaled to do so. It is conceded that, at the time the plaintiff was injured, he was employed in interstate commerce by the defendant, a common carrier by railroad, engaged in such commerce. Hence the federal Employers' Liability Act and the Safety Appliance Acts are applicable to the case. If therefore his injuries were the result of negligence on the part of his fellow servants, he may recover therefor. If, on the other hand, they were due to a defective coupler on one of the cars which he was required to uncouple, the fact that the same was defective, although the defendant may have exercised all the care to have had the same in proper condition, was such negligence as, under the Employers' Liability Act, by reason of the Safety Appliance Acts, entitled him to recover for the injuries which he sustained thereby. San Antonio Ry. v. Wagner, 241 U.S. 476, 484, 36 Sup.Ct. 626, 60 L.Ed. 1110; Texas & Pacific Ry. v. Rigsby, 241 U.S. 33, 43, 36 Sup.Ct. 482, 60 L.Ed. 874.

We now proceed to an examination of the assignments of error relied upon, in the light of these general observations. The defendant advances four reasons why the judgment below should be reversed. These will appear as they are hereafter discussed.

1. It is first urged that the plaintiff's version as to how the accident happened (which must have been accepted by the jury, in order to entitle the plaintiff to recover), 'is contradicted by physical facts,' and that the judgment should for that reason be reversed. At the outset of the discussion of this point, it should be noted that the trial court declined to set aside the verdict as contrary to the weight of evidence. In reality, therefore, the defendant is seeking to have the action of the trial judge in that respect reviewed. Without wishing to be understood as conceding or intimating that a federal court of appeal may, on writ of error, reverse a judgment because it is based upon a verdict contrary to the 'physical facts' in the case, except it be possibly, on the theory that the refusal of a trial judge to set aside such a verdict amounts to a clear abuse of the discretion which the law vests in him (James v. Evans, 149 F. 136, 141, 80 C.C.A. 240 (C.C.A. 3d Cir.)), it is, we think, sufficient for the purposes of this case merely to state that a careful reading of the record discloses that the so-called 'physical facts,' which the defendant claims conclusively controvert the plaintiff's version of the accident, were themselves controverted and depended for their establishment upon the acceptance by the jury of the testimony of some of the defendant's witnesses who testified to them, and the rejection of the plaintiff's testimony, either in respect to their existence or in explanation of the apparent inconsistency between some of them and the plaintiff's version of how the accident happened.

It is therefore apparent that we are asked to weigh the conflicting evidence in the light of the probabilities, and thus to invade the exclusive province of the jury, and, on an application for a new trial, of the trial judge. This we may not do. Erie Railroad Co. v. Schmidt, 225 F. 513, 515, 140 C.C.A. 655 (C.C.A. 3d Cir.); Humes v. U.S., 170 U.S. 210, 18 Sup.Ct. 602, 42 L.Ed. 1011; Herencia v. Guzman, 219 U.S. 44, 31 Sup.Ct. 135, 55 L.Ed. 81; Texas & Pacific R.R. Co. v. Harvey, 228 U.S. 319, 325, 33 Sup.Ct. 518, 57 L.Ed. 852. It is not urged or suggested that there was a clear abuse of discretion on the part of the trial judge in declining to grant a new trial on the ground that the verdict was contrary to the weight of the evidence; but if such had been the defendant's insistment, or if the effect of its present contention amounts to the same thing, which we think it does, we would be unable to find any such abuse of discretion on his part, in view of the conflict in the evidence, involving, as it does, the credibility of witnesses, without disregarding the rule before referred to, that on writ of error we are precluded from considering the weight of the...