Sullivan v. Balt. & Ohio R. R. Co.

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Sadler
• Citation: 272 Pa. 429
• Parties: Sullivan <I>v.</I> Baltimore & Ohio R. R., Appellant.
• Decision Date: 03 January 1922

Page 429

272 Pa. 429 Sullivan
v.
Baltimore & Ohio R. R., Appellant. Supreme Court of Pennsylvania. October 25, 1921. January 3, 1922.

Page 430

Argued October 25, 1921.

Appeal, No. 105, Oct. T., 1921, by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1917, No. 188, on verdict for plaintiff, in case of Ralph Sullivan v. Baltimore & Ohio Railroad Co.

Before MOSCHZISKER, C. J., FRAZER, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ. Affirmed.

J. M. Wright, of Wright, Chalfant & McCandless, for appellant.—To entitle plaintiff to recover under the Employers' Liability Act, there must be proof of negligence: Reese v. R. R., 239 U. S. 463; Bruggeman v. York, 254 Pa. 430; Alexander v. Water Co., 201 Pa. 252.

The verdict even as reduced by the court is so excessive as to entitle defendant to a new trial.

Page 431

The work in which Sullivan was engaged at the time of the alleged accident was a local switching operation, and was not interstate commerce: Shanks v. R. R., 239 U. S. 556; Di Donato v. Ry., 266 Pa. 412.

Both the employee and the employer must be engaged in interstate commerce "at the time of the injury": Shanks v. R. R., 239 U. S. 556; Chicago, B. & Q. R. R. v. Harrington, 241 U. S. 177.

R. P. Marshall, with him M. R. Marshall and Oliver K. Eaton, for appellee.—That plaintiff owed a duty of inspection to the plaintiff is settled: McGinley v. R. R., 235 Pa. 576; Irwin v. R. R., 226 Pa. 156; McConnell v. R. R., 223 Pa. 442; Marsh v. R. R., 206 Pa. 558.

The judgment was not excessive.

The court did not abuse its discretion in allowing the verdict of $12,000 to be reduced to judgment: O'Hanlon v. Rys., 256 Pa. 394.

The parties were engaged in interstate commerce at the time of the accident: Shanks v. R. R., 239 U. S. 556; North Carolina R. R. v. Zachary, 232 U. S. 248; Louisville & N. R. R. v. Parker, 242 U. S. 13; New York Central, etc., R. R. v. Carr, 238 U. S. 260; Penna. Co. v. Donat, 239 U. S. 50; Great Northern Ry. Co. v. Otos, 239 U. S. 349; Erie R. R. v. Winfield, 244 U. S. 170; Whalley v. R. R., 248 Pa. 298; Murray v. R. R., 263 Pa. 398; Seaboard, etc., R. R. v. Koennecke, 239 U. S. 352; Pedersen v. R. R., 229 U. S. 146; St. Louis, S. F. & T. R. R. v. Seale, 229 U. S. 156; N. Y. Cent. R. R. v. Porter, 249 U. S. 168.

OPINION BY MR. JUSTICE SADLER, January 3, 1922:

The plaintiff was employed by defendant company as a brakeman in its railroad yards on the night of November 23, 1915, and claimed to have then suffered an injury. As was his duty, he stood on the top of a freight car for the purpose of signaling the engineer. Having performed this service, he attempted to descend to the

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ground by means of a ladder provided for that purpose. It appeared by his testimony that one of the rungs broke or pulled from its socket, causing him to be thrown and hurt. Sullivan claimed he was employed in interstate commerce, and an action was brought to recover under the Federal Employers' Liability Act (Act April 22, 1908, 35 Stat. 65, ch. 149). The first trial resulted in a finding, which was set aside; the second hearing terminated in a verdict for $18,000, reduced as excessive, upon motion, to $12,000. From the judgment entered this appeal has been taken.

At the outset, it becomes necessary to determine the character of the service of the plaintiff. To make applicable the federal statute, it must appear not only that the carrier was employed in interstate commerce, but that the one injured was likewise so engaged at the time: Shanks v. D., L. & W. R. R., 239 U. S. 556. This was properly explained to the jury in the present instance, and, under the circumstances developed, the question was one for its consideration: North Carolina R. R. Co. v. Zachary, 232 U. S. 248, 58 L. Ed. 591. There may be cases in which the evidence is so clear as to justify a declaration by the court as to the class of work in which a claimant is engaged (Moyer v. P. R. R., 247 Pa. 210; Hench v. Penna. R. R. Co., 246 Pa. 1), but, where the question rests upon facts as to which there may be doubt, the solution is for the jury. Here, there was testimony from which it could be found that the plaintiff was employed in making up a train, on the tracks of defendant company, for delivery to a connecting railroad for through shipment. Both were at the time engaged in interstate business, and the particular train contained certain vehicles billed to points in other states. The fact that intrastate as well as interstate cars were included does not alter the character of the service: P. & R. Ry. Co. v. Polk, 255 U. S. 518. "The true test of employment in such commerce in the sense intended is, was the employee at the time of the injury

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engaged in interstate transportation or in work so closely related to it as to be practically a part of it?" Shanks v. Railroad, supra. See also, Erie Railroad v. Winfield, 244 U. S. 170; Penna. Railroad v. Donat, 239 U. S. 50; Louisville & N. Railroad v. Parker, 242 U. S. 13. The jury, under proper instructions, found Sullivan was so occupied, and the conclusion reached was justified by the evidence adduced.

The Federal Employers' Liability Act therefore controls the rights of the claimant; the trial was had on this theory. The plaintiff might have instituted his action, basing his contention upon the Safety Appliance Act of March 2, 1893 (27 Stat. at Large, ch. 196), as amended by the Act of April 14, 1910 (36 Stat. at Large, ch. 160), and recovered without proof of negligence, if he showed that proper ladders were not provided on the cars about which he was employed: Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33; 1 Roberts Federal Liability of Carriers 921; 2 Id. 1368. But his demand was based on the former statute; as a result, it was incumbent upon him to prove lack of due care by the defendant,...