Whitney v. New York, N.H. & H.R. Co.

• Decision Date: 13 June 1900
• Docket Number: 329.
• Citation: 102 F. 850
• Parties: WHITNEY v. NEW Y0RK, N.H. & H.R. CO.
• Court: U.S. Court of Appeals — First Circuit

102 F. 850

WHITNEY v. NEW Y0RK, N.H. & H.R. CO.

No. 329.

United States Court of Appeals, First Circuit.

June 13, 1900

Edward H. Pierce, for plaintiff in error.

Charles F. Choate, Jr., for defendant in error.

In Error to the Circuit Court of the United States for the District of Massachusetts.

Before PUTNAM, Circuit Judge, and ALDRICH and BROWN, District Judges.

PUTNAM Circuit Judge.

This suit was brought by the plaintiff in error for an injury occurring to him while riding in a passenger train of the defendant in error. The circuit court directed a verdict for the defendant, and the plaintiff below thereupon sued out this writ of error. The record raises two questions: First whether there was any case to go to the jury on the allegation of negligence; and second, whether or not the plaintiff was a passenger. The only evidence offered in the court below was that in behalf of the plaintiff. At the close of that evidence a motion was made to direct a verdict for the defendant on the ground that no sufficient proof of defendant's negligence had been shown, which motion the court overruled. Thereupon the defendant moved that the court direct a verdict for the defendant on the ground that the plaintiff was an employe of the defendant when injured, and that he could not recover by reason of the fact of his riding on an employe's pass, by the conditions on the back of which the holder expressly assumed all risks arising from the negligence of the agents of the defendant, or otherwise, while using it. On that motion the court made a ruling favorable to the defendant which appears in the record, and also it directed a verdict for the defendant. The exceptions were both to the ruling and to the order to return a verdict.

The bill of exceptions states, 'All the evidence at the trial material to the exceptions in this case was as follows. ' Therefore it is presumable that the entire evidence is in the bill of exceptions, except what related to the question of damages, and possibly to some other questions about which there is now no dispute. Under the rulings, it is presumably the right to the defendant to support the verdict on any ground which the evidence in the bill of exceptions permits. This is a well-settled rule, expressly restated in Sullivan v. Mining Co., 143 U.S. 431, 434, 12 Sup.Ct. 555, 36 L.Ed. 214, where it is held that if, on all the facts in the case, the judgment was one which must necessarily have been rendered, it must stand. The same ruling was applied, under very peculiar circumstances, in Dry-Goods Co. v. Malcolm, 164 U.S. 483, 491, 492, 17 Sup.Ct. 158, 41 L.Ed. 524, where the basis for sustaining the judgment was altogether different from that which was expressly presented by the bill of exceptions. Of course, if it were apparent from the record before us that the defendant had rested its case in the court below entirely on the proposition that the plaintiff was an employee, or otherwise expressly or impliedly waived other defenses, or by its course had in any way blinded the plaintiff, so that it might be though it had stopped him from putting in all the evidence of negligence that he might have put in, it could not have brought this question before this court for its consideration.

The injury happened through the overturning of a car in which the plaintiff was riding, at a switch near the approaches to the defendant's station at Boston. The effective cause of the overturning is not shown by the proofs. The plaintiff suggests three different explanations of the accident: One that the switch was defective, second, that it was not provided with modern appliances for safety; and, third, that the switchman was personally negligent. The defendant offered no evidence in its own behalf, and did not even call the switchman, nor show reason for not calling him. It is well settled that, in a case brought by an employe against an employer, the employe is subject to the ordinary rule of the common law, that it rests on him to allege and prove that the injury arose from the negligence of his employer. This was so held by us in Stevens v. Chamberlin, 40 C.C.A. 421, 100 F. 378, 380, and it is recognized as a well-known rule of law in Railway Co. v. Barrett, 166 U.S. 617, 619, 27 Sup.Ct. 707, 41 L.Ed. 1136. But, with reference to passengers, a necessity arises out of the fact that they are not presumed to have knowledge of the methods of particular carriers, and that to them the causes of injuries are inscrutable. The rule is best stated in Gleeson v. Railway Co., 140 U.S. 435, 443, 11 Sup.Ct. 862, 35 L.Ed. 463. There the decisions of the supreme court are referred to, wherein it is said to have been settled that the happening of an injurious accident is, in passenger cases, prima facie evidence of negligence on the part of the carrier, 'and that, the passenger being himself in the exercise of due care, the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidable by human foresight.'

The nature of the duty resting on the defendant in this case with reference to the alleged absence of modern appliances was stated in Mather v. Rillston, 156 U.S. 391, 399, 15 Sup.Ct. 467, 39 L.Ed. 470. While, of course, no carrier can be held at fault, so long as he uses approved safeguards, merely because he does not always use those which theoretically or experimentally may attain better results, yet in that case the general rule laid down by the court was as follows:

'We think it may be laid down as a legal principle that, in all occupations which are attended with great and unusual danger, there must be used all appliances, readily attainable, known to science for the prevention of accident, and that the neglect to provide such readily attainable appliances will be regarded as proof of culpable negligence.'

In view of this, we think the case would justly have been left to the jury on the question whether the safeguard appliances referred to were available on the part of the defendant, if that question had been reached. Also, in view of the lack of proof offered by the defendant with reference to its switchman, we think the court would not have been justified in taking from the jury the question, if reached, whether the defendant had fully met the burden resting on it according to the rule in Gleeson v. Railway Co. So far as this part of the case is concerned, the ruling of the court below cannot be questioned.

Coming to the main issue, we are controlled with reference to it by the decisions of the supreme court. The only evidence, as we have said, was that of the plaintiff. The essential facts are not disputed, for the purposes of this writ of error; neither is there any substantial difference between the parties as to any question, except of law. The facts are, for this appeal, so similar to those in Doyle v. Railroad Co., 166 Mass. 492, 44 N.E. 611, 33 L.R.A. 844, that it is not maintained that, if that case controlled this court, the ruling of the circuit court should be supported. It is said, however, that we are not bound by the decisions of the supreme judicial court of Massachusetts on a question of this character, and such is the settled rule. Especially, matters arising out of the transportation of goods and passengers are so largely of an interstate character, as is this at bar, that uniformity of decision in the federal courts becomes necessary; and this could not be accomplished if conclusive effect were given locally to local decisions, which, on questions of this nature, are often conflicting. Nevertheless, Doyle v. Railroad Co. seems to be governed by the same rules as those laid down by the supreme court.

The plaintiff claimed to go to the jury on the following alleged facts: Being in the employment of the defendant, he changed to a new employment, still with the defendant. In connection with the change of employment, he stipulated, not only for an increase of wages, but also for free transportation to Boston from the city where he was to be employed, for his own convenience, and not in connection with going to or from his work. He was injured while on one of these trips to Boston and while not going to or from his work, and while he was not employed; that is to say, during the hours when he was free for recreation or to visit his family, or to use his time for any purpose of his own. He had received successive passes as each expired,...