Sullivan v. Baltimore & O. R. Co.

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: SADLER, J.
• Citation: 116 A. 369
• Decision Date: 03 January 1922
• Parties: SULLIVAN v. BALTIMORE & O. R. CO.

116 A. 369

SULLIVAN
v.
BALTIMORE & O. R. CO.

Supreme Court of Pennsylvania.

Jan. 3, 1922.

116 A. 369

Appeal from Court of Common Pleas, Allegheny County; Thomas D. Carnahan, Judge.

Action by Ralph Sullivan against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed. Certiorari denied, 257 U. S. ——, 42 Sup. Ct. 272, 66 L. Ed. ——

Argued before MOSCHZISKER, C. J., and FRAZER, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.

116 A. 370

J. M. Wright (of Wright, Chalfant & McCandless), of Pittsburgh, for appellant.

R. P. and M. R. Marshall and Oliver K. Eaton, all of Pittsburgh, for appellee.

SADLER, J. 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 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, c. 149 [U. S. Comp. St §§ 8657-8665]). 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, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797. 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, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159. 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, 93 Atl. 282; Hench v. Penna. R. R. Co., 246 Pa. 1, 91 Atl. 1056, L. R. A. 1915D, 557, Ann. Cas. 1916D, 230), 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, 256 U. S. 332, 41 Sup. Ct. 518, 65 L. Ed. ——.

"The true test of employment in such commerce in the sense intended is, Was the employee at the time of the injury 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, 37 Sup. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662; Pennsylvania Co. v. Donat, 239 U. S. 50, 36 Sup. Ct. 4, 60 L. Ed. 139; Louisville & N. Railroad v. Parker, 242 U. S. 13, 37 Sup. Ct. 4, 61 L. Ed. 119. 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, c. 196 [U. S. Comp. St. §§ 8605-8612]), as amended by the act of April 14, 1910 (36 Stat, at Large, c. 160 [U. S. Comp. St. §§ 8617-8619, 8621-8623]), 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, 36 Sup. Ct. 482, 60 L. Ed. 874; 1 Robert's Federal Liability of Carriers, 921; 2 Robert's Federal Liability of Carriers, 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 which was the proximate cause of the injury, and to present a case free from facts showing the risk was one which had been assumed by him when employment was accepted. Southern Pacific Co. v. Berkshire, 254 U. S. 415, 41 Sup. Ct. 162, 65 L. Ed. 335.

To meet the burden, plaintiff described a fall from a ladder attached to the car, an appliance provided by the railroad for use by the employees under circumstances here presented. He testified to the displacement of a rung, causing his sudden descent, and that an examination showed the ladder to be rusted and so worn throughout that it was "practically ready to fall away." This condition was observable to any one who examined it. It is true this evidence comes from the appellant alone, but it was for the jury. The contradiction of the statements, made by witnesses for defendant, which tended to show that no such defect appeared upon inspection made the same day, was for the consideration of that body, and the court below would not have been justified in treating the matter as...