Philadelphia & R. Ry. Co. v. Marland, 2112.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation239 F. 1
Docket Number2112.
PartiesPHILADELPHIA & R. RY. CO. v. MARLAND.
Decision Date22 January 1917

239 F. 1

PHILADELPHIA & R. RY. CO.
v.
MARLAND.

No. 2112.

United States Court of Appeals, Third Circuit.

January 22, 1917


[239 F. 2] [Copyrighted Material Omitted] [239 F. 3]

Wm. C. Mason, of Philadelphia, Pa., for plaintiff in error.

George Demming, of Philadelphia, Pa., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

WOOLLEY, Circuit Judge.

This is an action brought under the Employers' Liability Act of April 23, 1908, c. 149, 35 Stat. 65, against the railway company for negligently causing the death of the plaintiff's intestate, her husband. The averments in the statement of claim pertinent to the present inquiry are, that the plaintiff's intestate was a freight brakeman in the employ of the defendant railway company, engaged at the time of his injury in interstate commerce; that his death was caused by his head coming in contact with an overhead bridge; and that his death was due to the negligence of the defendant company, (1) in constructing and maintaining over its tracks a bridge with insufficient clearance; and (2) in operating a train under such bridge, without giving the intestate timely and sufficient warning of its dangers. The first ground of negligence was abandoned, [239 F. 4] and the case was tried and decided upon the second ground, resulting in a verdict for the plaintiff. The defendant sued out this writ.

Of the several specifications of error, the defendant (plaintiff in error) relies chiefly upon the one in which error is charged to the court's refusal to give binding instructions in its favor. Under this assignment, its complaint is, that the court permitted the jury to speculate, in the absence of affirmative proof, (1) as to the cause of the intestate's death, and (2) as to the fact and character of the defendant's negligence. A consideration of this contention calls for a brief recital of the evidence.

At the time of his death, Marland was the front brakeman of a freight train on a run on the defendant's railroad from Nicetown to Belmont. Over the tracks of this run were seven overhead bridges constructed at different elevations. Four of these bridges were so high that they were in no sense dangerous, and may, therefore, be eliminated from the case. Three were known as the Wissahickon Avenue bridge, Stokely Street bridge, Fox Street bridge, and were approached in the order named. The Wissahickon Avenue bridge had a clearance of fifteen feet ten inches, that is, the distance between the top of the rails and the under surface of the bridge was fifteen feet ten inches. Stokely Street bridge had a like clearance of fifteen feet ten inches between the rails and the lowest part of its under surface; and Fox Street bridge had a clearance of nineteen feet seven inches. It was testified that the clearances of these three bridges were such that a man could not stand upon a box car of ordinary height and escape being struck on the head by the bridges, and that the clearances of two of the bridges were such as not to permit a man to sit erect upon such a box car in passing under them without like contact.

Marland was found, on the arrival of the train at Belmont, after passing under the three bridges, lying upon the top of the tender, with a gash in his forehead and his neck broken, dead or dying. There was no witness to his injury, and the court permitted the jury to infer the cause of death from his position upon the tender of a given height, considered in connection with his own height, in relation to the clearances of the bridges under which he had passed, as well as from the nature of his injuries. The defendant says that in submitting this testimony to the jury and allowing them to infer from it the cause of the intestate's death, the court relieved the plaintiff of her duty to affirmatively show the cause of death, and permitted the jury to speculate thereon, arguing that the intestate might have come to his death by other means, as by something falling or thrown from a bridge, and striking him. True, as to the cause of death there was no direct evidence. But clearly, proof of cause of death is not restricted to direct evidence. 2 Thompson on Negligence, Sec. 2194. It may be proved by legitimate inferences drawn from attendant facts, such as the nature of the wound, the position of the body, the clearances of the bridges, and the absence of any other suggested or reasonable cause. These facts constitute evidence from which the reasonable and almost unavoidable inference is that death was caused by contact with an overhead bridge. From these facts we think the [239 F. 5] jury might find the cause of death as a fact. Such findings, upon like inferences drawn from similar situations, have been sustained by the courts. In C. & O. Ry. Co. v. Cowley, 166 F. 283, 92 C.C.A. 201, and in Choctaw, etc., R. Co. v. McDade, 112 F. 888, 50 C.C.A. 591, affirmed by the Supreme Court in 191 U.S. 64, 24 Sup.Ct. 24, 48 L.Ed. 96, it appears that a railroad company permitted the spout of a water tank to hang so low over passing trains as not to clear a person standing upon a car. Evidence that a brakeman, after being on a car passing the tank, was found lying on the track injured, was held sufficient (in the absence of direct testimony) to justify a finding that he was struck and injured by the overhanging spout. This was an entirely natural and reasonable inference. So a reading of the testimony in the case at bar makes it difficult to conceive how the jury could have arrived at any other conclusion than that Marland was struck and killed by one of the bridges.

The next contention of the defendant is that the plaintiff failed to show by which one of the three bridges the intestate's injuries were inflicted, and that the court permitted the jury (1) to speculate as to which one caused his death, and (2) to presume the defendant's negligence from the fact of the accident.

It is manifest, that had there been but one overhead bridge so constructed as to cause the injury, the issue as to what caused death would have been submissible to the jury. Cases supra. The fact that there were three bridges so constructed does not alter the submissible character of the issue, although it may widen its range. A careful reading of the testimony discloses that the theory upon which the case was tried and upon which it was submitted does not leave open to speculation which of the three bridges caused the injury. As no one saw the injury inflicted and as the jury might properly have found that it was inflicted by one of the bridges, the plaintiff endeavored to prove and the jury evidently found, by process of elimination, which bridge did the injury.

The evidence tends to show that a man of the height of the decedent, five feet four inches, standing erect on the top of a box car of ordinary height, would be struck by any one of the three bridges. We think the evidence shows conclusively that at the time Marland was struck he was not upon a box car at all. When found, he was upon the tender, lying with his feet toward the engine and his head toward the train, being in a place and in a position quite impossible (in view of the direction in which the train was moving) had he received the blow when upon any box car of the train. So, it is a fair, in fact almost an inescapable inference, for the jury to draw, that he was upon the tender when struck.

The testimony shows, that standing upon the tender, which was about twelve feet high, his own height being five feet four inches, he would have been struck by either one of two bridges, that is, by Wissahickon Avenue bridge and by Stokely Street bridge, both of which had clearances of but fifteen feet ten inches; and it also shows that if standing upon the tender when passing under Fox Street bridge with its clearance of nineteen feet seven inches, he would have [239 F. 6] cleared it. Therefore, Fox Street bridge is eliminated and the question is reduced to which of the two bridges, Wissahickon Avenue or Stokely Street bridge, of the same clearance, inflicted the injury.

Wissahickon Avenue bridge was the first bridge approached, and in approaching it, Marland was last seen on the fourth car from the engine, at a point about eight car-lengths distant from the bridge. The train was moving toward the bridge, and Marland was walking toward the front of the train. It was testified that the space between the first box car and the tender was too great to jump, and that one walking from the train to the tender had to descend the box car, step across to the sill of the tender, and climb up the tender to its top. It appears to be a very reasonable and in truth a very probable inference, that within the time the train moved Marland eight car-lengths to Wissahickon Avenue Bridge, it was impossible for him to make the journey of four cars, descend the last car and ascend the tender in time to be struck by Wissahickon Avenue bridge. The elimination of Fox Street bridge because of its sufficient clearance, and of Wissahickon Avenue bridge because of the location in which the testimony put Marland when the train passed under it, leaves Stokely Street bridge as the bridge which in all reasonable probability inflicted the injury. We are therefore of opinion that the jury did not speculate but drew a reasonable and sustainable inference that Marland met his death at Stokely Street bridge, and that the plaintiff did all that was required of her in telling the defendant and proving to the jury how and where Marland met his death.

Further complaining of speculation by the jury, the defendant maintains that they were allowed to presume the negligence of the defendant from the fact of the accident, in violation of the well settled rule, that the fact of the accident carries with it no presumption of negligence on the part of the employer, and that the employer's negligence is an affirmative fact to be established by the...

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24 practice notes
  • Favre v. Louisville & N. R. Co, 32973
    • United States
    • Mississippi Supreme Court
    • January 24, 1938
    ...364; T. & P. Ry. v Swearingen, 196 U.S. 51, 49 L.Ed. 382; C. O. & G. R. Co. v. McDade, 191 U.S. 64, 48 L.Ed. 96; P. & R. R. Co. v. Marland, 239 F. 1; Bryce v. C. M. & St. P. Ry., 72 N.W. 780; Hughes v. Louisville & N. R. Co., 48 S.W. 671; Reading Co. v. Geary, 47 F.2d 142; L. R. & Ft. S. Ry......
  • Missouri, K. & T. Ry. Co. v. Riddle, (No. 254.)<SMALL><SUP>*</SUP></SMALL>
    • United States
    • Court of Appeals of Texas
    • October 15, 1925
    ...Grand Trunk W. R. Co. v. Lindsay, 233 U. S. 42, 34 S. Ct. 581, 58 L. Ed. 838, Ann. Cas. 1914C, 168; Philadelphia & R. Ry. Co. v. Marland, 239 F. 1, 152 C. C. A. 51; Southern Ry. Co. v. Mays, 239 F. 41, 152 C. C. A. 91; Illinois Central Ry. Co. v. Skaggs, 240 U. S. 66, 36 S. Ct. 249, 60 L. E......
  • Davis v. Crane, No. 7181.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 19, 1926
    ...F. 682, 112 C. C. A. 228; Cincinnati, N. O. & T. P. Ry. Co. v. Thompson, 236 F. 1, 149 C. C. A. 211; Philadelphia & R. Ry. Co. v. Marland, 239 F. 1, 152 C. C. A. 51; Taber v. Davis (C. C. A.) 280 F. 612; Texas & Pacific Ry. Co. v. Archibald, 170 U. S. 665, 18 S. Ct. 777, 42 L. Ed. 1188; Cho......
  • Murphy v. UNITED STATES DISTRICT COURT, ETC., No. 10883.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 12, 1945
    ...v. Jacksonville Towing & Wrecking Co., C.C., 181 F. 276, affirmed 1910, 5 Cir., 184 F. 987; Philadelphia & R. R. Co. v. Maryland, 3 Cir., 239 F. 1; See also, Indianapolis, etc., R. Co. v. Horst, 93 U.S. 291, 23 L.Ed. 898; Newcomb v. Wood, 97 U.S. 581, 24 L.Ed. 1085; Missouri Pacific R. Co. ......
  • Request a trial to view additional results
24 cases
  • Favre v. Louisville & N. R. Co, 32973
    • United States
    • Mississippi Supreme Court
    • January 24, 1938
    ...364; T. & P. Ry. v Swearingen, 196 U.S. 51, 49 L.Ed. 382; C. O. & G. R. Co. v. McDade, 191 U.S. 64, 48 L.Ed. 96; P. & R. R. Co. v. Marland, 239 F. 1; Bryce v. C. M. & St. P. Ry., 72 N.W. 780; Hughes v. Louisville & N. R. Co., 48 S.W. 671; Reading Co. v. Geary, 47 F.2d 142; L. R. & Ft. S. Ry......
  • Missouri, K. & T. Ry. Co. v. Riddle, (No. 254.)<SMALL><SUP>*</SUP></SMALL>
    • United States
    • Court of Appeals of Texas
    • October 15, 1925
    ...Grand Trunk W. R. Co. v. Lindsay, 233 U. S. 42, 34 S. Ct. 581, 58 L. Ed. 838, Ann. Cas. 1914C, 168; Philadelphia & R. Ry. Co. v. Marland, 239 F. 1, 152 C. C. A. 51; Southern Ry. Co. v. Mays, 239 F. 41, 152 C. C. A. 91; Illinois Central Ry. Co. v. Skaggs, 240 U. S. 66, 36 S. Ct. 249, 60 L. E......
  • Davis v. Crane, No. 7181.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 19, 1926
    ...F. 682, 112 C. C. A. 228; Cincinnati, N. O. & T. P. Ry. Co. v. Thompson, 236 F. 1, 149 C. C. A. 211; Philadelphia & R. Ry. Co. v. Marland, 239 F. 1, 152 C. C. A. 51; Taber v. Davis (C. C. A.) 280 F. 612; Texas & Pacific Ry. Co. v. Archibald, 170 U. S. 665, 18 S. Ct. 777, 42 L. Ed. 1188; Cho......
  • Murphy v. UNITED STATES DISTRICT COURT, ETC., No. 10883.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 12, 1945
    ...v. Jacksonville Towing & Wrecking Co., C.C., 181 F. 276, affirmed 1910, 5 Cir., 184 F. 987; Philadelphia & R. R. Co. v. Maryland, 3 Cir., 239 F. 1; See also, Indianapolis, etc., R. Co. v. Horst, 93 U.S. 291, 23 L.Ed. 898; Newcomb v. Wood, 97 U.S. 581, 24 L.Ed. 1085; Missouri Pacific R. Co. ......
  • Request a trial to view additional results

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