Philadelphia & R. Ry. Co. v. Cannon

• Decision Date: 27 February 1924
• Docket Number: 3047.
• Parties: PHILADELPHIA & R. RY. CO. v. CANNON.
• Court: U.S. Court of Appeals — Third Circuit

296 F. 302

PHILADELPHIA & R. RY. CO. v. CANNON.

No. 3047.

United States Court of Appeals, Third Circuit.

February 27, 1924

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

Frank F. Davis, of New York City, for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

Cannon was a brakeman in a yard shifting crew of the defendant company at work in the Harrisburg yards. On the day in question it was desired to shift two shop cars from one part of the yard to another. These cars stood beyond and were attached to three Western Maryland battleship cars. To move the shop cars it was necessary to move the Western Maryland cars also, the purpose being, after the shop cars had been dropped, to return the Western Maryland cars to the same place. To effect this movement the engine, to which a car loaded with stone had been attached, backed this car against the first Western Maryland car and made a coupling. As it was proposed to move the entire draft, it was Cannon's duty to release the brakes on the cars that had been standing on the track. Ostensibly for this purpose Cannon passed between the two head Western Maryland cars. Two or three minutes later he was found lying on the ground on the other side of the draft at a place opposite that at which he had entered having sustained injuries from which he died. His widow, as administratrix, brought this action to recover damages under the federal Employers' Liability Act (Comp. St. Secs 8657-8665) and at common law for violations of the Safety Appliance Act (Comp. St. Sec. 8605 et seq.), alleging specifically a defective brake as the cause of death. Act June 11, 1906, 34 Stat. 232, and amendments; Act Feb. 4 1887, 24 Stat. 379, and amendments. She had a verdict and judgment. The case is here on the defendant's writ of error.

Of the several questions raised by the assignments of error only two, in our opinion, require discussion. These are whether, on the evidence, the plaintiff brought herself within the federal Employers' Liability Act and whether she made out a case of negligence against the defendant.

The first question rests on the character of the employment of the decedent at the time of his injury, and the character of his employment rests in turn on the character of the Western Maryland cars as instrumentalities of commerce at that time. There was very little testimony about these cars. They were, admittedly, owned by the Western Maryland Railroad Company and were in Pennsylvania. It was therefore presumed, on the plaintiff's theory, that they had come from Maryland into Pennsylvania on an errand of interstate commerce. Being empty, it was presumed they had arrived at their destination. The record is silent as to whether they had, since then, been used in intrastate commerce or were merely 'drifting.' Pennsylvania R. Co. v. Knox, 218 F. 748, 134 C.C.A. 426. Being in the defendant's yards at Harrisburg, where cars of all kinds are classified for transportation elsewhere, the plaintiff urges that, pursuant to a custom of the yards, these cars were in process of being routed homeward, and that, having (presumably) been instrumentalities of interstate commerce outward bound, they remained instrumentalities of that commerce homeward bound, and were, for this reason, of a character to bring the decedent's work of releasing their brakes within interstate commerce-- a position somewhat at variance with Kozimko v. Hines (C.C.A.) 268 F. 507, 508, and Schauffele v. Director General (C.C.A.) 276 F. 115, 116. This contention is aided, the plaintiff maintains, by the fact that on the day after the accident the cars were routed to Lurgen, Pa., a connecting point between the Philadelphia & Reading Railway Company and the Western Maryland Railroad Company. This was all. We think it was not enough on which to submit the issue of interstate commerce. We are concerned, as was the jury, with the decedent's employment at the time of the accident. In the absence of evidence showing a previous routing homeward, the movement of the cars toward Maryland on the day after the accident sheds no light upon their character on the day of the accident. Thus we are, quite properly, brought back to the status of the cars on the day of the accident. On this there was no direct evidence. The evidence related to the yard custom we have mentioned. But this did not help the plaintiff because the custom was alternative in character in that, being classification yards from which all cars that came in are classified and sent out, foreign cars are classified according to railroad requirements. Sometimes they are sent to the hard coal regions; at other times to the stone quarries; and at other times to Lebanon to load ore-- all within the State of Pennsylvania. As one witness tersely testified, 'They were all worked home whenever we didn't need none. ' What was being done with the cars in question on the day of the accident-- what was their destination, if any-- was not shown. Indeed, nothing was shown beyond a purely local movement for a purely local purpose. Schauffele v. Director General (C.C.A.) 276 F. 115, 116. Therefore there was no evidence that would sustain a finding that they were, at the time, instrumentalities of interstate commerce, and, consequently, it was not proved that the decedent when working upon them was employed in commerce of that character. This may have been, and doubtless was, the best evidence of which the case was susceptible; yet we are constrained to hold that it was not sufficient and that, accordingly, the plaintiff did not affirmatively sustain the burden which the act imposes upon one seeking the benefit of its provisions.

The next question concerns the defendant's negligence. Here too, the law imposes upon the plaintiff the burden of...