Reading Co. v. Boyer

• Decision Date: 08 June 1925
• Docket Number: No. 3285.,3285.
• Citation: 6 F.2d 185
• Parties: READING CO. v. BOYER.
• Court: U.S. Court of Appeals — Third Circuit

6 F.2d 185 (1925)

READING CO. v. BOYER.

No. 3285.

Circuit Court of Appeals, Third Circuit.

June 8, 1925.

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

Ralph W. Botham, of New York City, and Wilbur A. Heisley, of Newark, N. J., for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

This suit was brought under the Federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) to recover damages sustained by the widow and children of George W. Boyer arising from his death while in the employ of the Reading Company as brakeman. The plaintiff had a verdict and the case is here on the defendant's writ of error.

Being in trespass, the action is based on the defendant's negligence. Its negligence, however, is oddly pleaded. In her statement of claim the plaintiff alleges:

"That the said fellow-servants of plaintiff's intestate who operated the cars that ran over * * * and killed him * * * carelessly and negligently failed to observe cautionary signals set against said train and carelessly and negligently disregarded the same and carelessly and negligently moved said train and suddenly stopped said train, so that by reason thereof, when plaintiff's intestate in the performance of his duty as brakeman thereof was alighting from said train, he was thrown under the wheels of the cars thereof and so injured and killed as aforesaid."

Failing at the trial to produce evidence in support of any one of these several allegations of negligence, constituting in the alternative the proximate cause of Boyer's death, the plaintiff abandoned this part of her statement of claim and relied upon another allegation termed at the trial "a contributing cause" of his death as distinguished from the proximate cause. It reads as follows:

"That said injuries and death of plaintiff's intestate was contributed to by the careless and negligent conduct of the defendant in allowing, at the time and place where plaintiff's intestate alighted from his said train, certain deep, wide and dangerous excavations and holes to be and exist in and adjoining the tracks of its said railroad, * * * and that plaintiff's intestate, in alighting from his said train, was, by reason of the presence of said holes and excavations, prevented from obtaining a secure footing upon the ground and lost his footing by falling into the same and was thereby thrown beneath the wheels of said train."

At the trial the plaintiff offered no evidence to prove the existence of "deep, wide and dangerous excavations and holes" in and about the tracks (which alone, we think, would have justified the granting of the defendant's motion for a directed verdict), but relied upon the absence of ballast, or the lack of sufficient ballast, between the ties and between the main track and the track of the siding at the place of the accident as negligence. We think a verdict for the defendant could have been directed because of a variance between the allegata and the probata had the motion been pressed on that ground. But the case was tried on the lack of ballast as the negligence constituting the contributing cause of the accident and it was submitted to the jury on undisputed evidence, which was substantially as follows:

The freight train was approaching Sinking Spring, Pennsylvania. At that point the crew were under orders to cut out the twelfth and thirteenth cars and place them on a siding. In order to do that...