Vickery v. New London N. R. Co.

• Decision Date: 15 January 1914
• Citation: 89 A. 277,87 Conn. 634
• Court: Connecticut Supreme Court
• Parties: VICKERY v. NEW LONDON NORTHERN R. CO. et al.

89 A. 277

87 Conn. 634

VICKERY

v. NEW LONDON NORTHERN R. CO. et al.

Supreme Court of Errors of Connecticut.

Jan. 15, 1914.

Appeal from Superior Court, New London County; William H. Williams, Judge.

Action for personal injuries by William A. Vickery against the New London Northern Railroad Company and another. From a judgment for plaintiff for $8,500, defendants appeal. Affirmed.

The complaint, as originally brought and as it remained, alleged that the defendant "the New London Northern Railroad Company owned a certain railroad in this state running into said New London as a common carrier of merchandise and passengers in cars drawn by engines operated by steam along and over said railroad," that "the defendant the Central Vermont Railway Company, by virtue of a lease from the said New London Northern Railroad Company, controlled, managed, and operated said railroad in the exercise of the authority and franchise conferred upon the defendants by their acts of incorporation and the laws of this state," and that "at said time the defendants had established and were maintaining a large railroad yard on what is known as Winthrop's Neck in that part of New London known as East New London through which ran its main line track and in which were many switch tracks." It was further alleged in substance that the plaintiff, while employed by the defendant the Central Vermont Railway Company, as a brakeman, and while engaged in such employment in said railroad yard was, on the evening of September 5, 1909, by reason of negligent conduct on the defendant's part in the matter of the maintenance of a switch stand dangerously near to the tracks and without a warning light thereon, and in the absence of contributory negligence on his part, seriously injured. The defendants' answer contained two defenses. The first consisted of denials of the allegations of the complaint of negligence on the part of the defendants and the consequent injuries to the plaintiff as alleged. The second averred that the plaintiff had formerly worked in the railroad yard, had full knowledge of the conditions complained of, and that he had assumed the risk incident thereto. The plaintiff replied admitting so much of the second defense as alleged that the plaintiff had formerly worked in the yard, and denying its remaining allegations. In January, 1913, while the pleadings were in this condition, the plaintiff asked leave to amend his complaint by the addition of allegations showing that the defendants were engaged in interstate commerce, and the plaintiff, at the time of his injuries, employed in such commerce. The desired leave was refused upon the ground that an allowance of the amendment would result in the bringing of a new cause of action, and one which had been lost to the plaintiff by statutory limitation. The defendants thereupon added to the two defenses already filed a third, which set out that the plaintiff's injuries were sustained by him while he was employed in interstate commerce by the Central Vermont Company, a common carrier by railroad then and there engaged in such commerce. The allegations of this defense were admitted. In this condition of the pleadings the case came to trial to a jury. The defendants requested the court to charge in substance that, if it should be found that at the time that the plaintiff received his injuries the Central Vermont Railway Company was engaged in interstate commerce and he employed by it in such commerce, the defendants were entitled to a verdict. This request was refused, the jury instructed that under the conditions stated, which were admitted by the pleadings, the action was one under and to be governed by the provisions of the so-called federal Employers' Liability Act and the case submitted as one under that act. In the course of the court's instructions the jury were told that under the pleadings the burden was upon the defendants to establish by a fair preponderance of proof their allegations denied touching the matter of the assumption of risk.

Michael Kenealy, of Stamford, and Charles B. Whittlesey, of New London, for appellants.

Christopher L. Avery and Tracy Waller, both of New London, for appellee.

PRENTICE, C. J. (after stating the facts as above). There are four reasons of appeal which in their substance resolve themselves into two: (1) That there was error in submitting the case to the jury under the federal statute; and (2) that the instruction that the burden of proof in the matter of assumption of risk was upon the defendant was erroneous.

The defendants' contention in support of the first claim of error rests upon two fundamental propositions, to wit: (1) That the complaint clearly and unmistakably undertook to set out a cause of action at common law, and one cognizable by that law for the reason that the injuries complained of were received in intrastate commerce operations and employment; and (2) that any course of procedure, construction of pleading, or instruction which would permit a recovery thereunder by force of the federal statute would be in effect to allow the introduction by the plaintiff of a new cause of action, and one against which the statutory limitation of time had run.

The complaint contains allegations which, if true, establish that the plaintiff's primary right of personal security was invaded by the Central Vermont Company's wrong arising from its failure to perform towards him its duty as his master, and that the plaintiff is entitled to a redress of the wrong so done him in damages recoverable in an action at law. The tort relied upon is fully set out. Whatsoever shortcomings there may be in the complaint, they do not concern the existence of a right of action. They concern the law invoked as furnishing the measure of damages recoverable. The situation is unusual in that we have two rules touching this subject prevailing and possessing equal authority in this jurisdiction, where the injury is received in railroad service. Our courts take judicial notice of both, and apply each as appropriate. If the employer is engaged in interstate commerce, and the employe is so engaged when injured, there is one rule for the determination of the amount of recovery. If otherwise, there is a different rule.

The complaint contains no clear statement upon the pertinent matter of the employer's character and the nature of the employe's employment. It is not stated whether the operating corporation was engaged in interstate or intrastate commerce. The only facts alleged from which an inference of any sort might be drawn is that its lessor, the New London Northern Railroad Company, owned a railroad in this state, and that the Central Vermont Company was the lessee in operation of said railroad. It is not said that the railroad so owned and operated lay entirely within the state. That it did not in fact so lie the court taking judicial notice of the charter of the lessor knew. 4 Private Laws, 996; 5 Private Laws, 261. But that matter aside, the allegation made is far from one that the Central Vermont Company was an intrastate carrier. The situation in that regard is left unrevealed or uncertain.

Counsel for the defendant say that the manifest intention of the pleader was to give to the operating corporation an intrastate character, and for that reason to state an action cognizable at common law only. We fail to discover substantial ground for that conclusion. It is to be borne in mind that the complaint was drafted shortly after the handing down of the opinion of this court in Hoxie v. New York, N. H. & H. R. Co., 82 Conn. 352, 73 Atl. 754, 17 Ann. Cas. 324, in which we held the federal statute unconstitutional, and as a consequence that...