Pittsburgh, C., C. & St. L.R. Co. v. Glinn

• Decision Date: 05 January 1915
• Docket Number: 2524.
• Citation: 219 F. 148
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. GLINN.
• Court: U.S. Court of Appeals — Sixth Circuit

219 F. 148

PITTSBURGH, C., C. & ST. L. RY. CO. v. GLINN.

No. 2524.

United States Court of Appeals, Sixth Circuit.

January 5, 1915

Joseph S. Graydon, of Cincinnati, Ohio, for plaintiff in error.

S. T McPherson, of Cincinnati, Ohio, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge.

The defendant in error, as plaintiff below, recovered a verdict and judgment against the railway company on account of the wrongful death of the intestate, Morford, who was her son. He was a brakeman in a switching crew, working in and near yards of the railway company, close to Cincinnati. The action was brought in reliance upon the Employers' Liability Act and the petition alleged that Morford was engaged in interstate commerce at the time he was killed. At the time in question, which was during a dark night, the switching crew had taken a cut of cars and distributed them in the yard, and had gone with only their engine outside the yard in order to re-enter upon another track to continue their switching work. It became necessary to use a cross-over switch to pass from the side track, upon which the engine was at the moment running, to the nearest main track, upon which the engine would then run in the opposite direction. Morford set the switches to permit such crossing over. After the engine had gone upon the main track and stood waiting for the last switch to be reset, so that the engine could return on that track, a train passed upon the other and adjacent main track. It was composed of freight cars, and was running backward with a caboose in the lead, at 25 miles per hour. A few minutes later, Morford was found dead, evidently having been hit by this caboose or train.

For the purpose of this review, and giving due effect to the instructions to the jury and to the verdict rendered, it must be assumed that the railway company was negligent in running this freight train backward at such a speed and without proper lookout and warning, and that this negligence was a proximate cause of the injury. Railway v. Jones (C.C.A. 6) 192 F. 769, 113 C.C.A. 55, 47 L.R.A.(N.S.) 483; Myers v. Pittsburgh Co., 233 U.S. 184, 34 Sup. 559, 58 L.Ed. 906. There is no such lack of inferential basis as we found in Smith v. Railroad, 200 F. 553, 119 C.C.A. 33.

Did the proof sufficiently tend to show that Morford was engaged in interstate commerce? At the moment, the switch engine was not hauling any cars, and so the true character of the employment can be determined only by a broader view. The evidence showed that the railway company, in and about these yards, was continuously and indiscriminately hauling intrastate and interstate freight, and that, in this part of the work, no distinction whatever was made between the two classes. Describing the work of this train crew, the yardmaster's clerk said that it handled both intrastate and interstate shipments, that it handled all classes and character of freight and all kinds of cars during its working hours, and that it did the work of transferring and putting into other trains everything that came in for transfer, making no difference or distinction. When it was sought to get the cards constituting the record which would show exactly what cars had been handled that night, counsel for the railroad said:

'We admit that when these cards come in, they will show freight of every character and description, intrastate and interstate-- both kinds.'

In answer to the...