Hogarty v. Philadelphia & Reading Railway Co.

99 A. 741, 255 Pa. 236, 8 A.L.R. 1386, 1916 Pa. LEXIS 554

Opinions

Opinion by

Me. Chief Justice Beown,

On February 1, 1910, William J. Hogarty, while performing his duties as an extra freight conductor of a shifting crew, of the Philadelphia & Reading Railway Company, was thrown under a car and sustained serious injuries, which resulted in the loss of his right arm. He was thrown under the car by coming in contact with a telegraph pole, which he alleges in the statement of his cause of action had been negligently placed and left by the railway company too close to the track on which the cars in his charge were being shifted. ■ In the performance of his duties at the time he was injured it was necessary for him to lean out beyond the side of a car to uncouple it while it was in motion, and, in so leaning out, his body struck the pole. The case has been twice tried. On the first trial the jury were instructed to find for the defendant, and judgment was subsequently entered in its favor.' Plaintiff’s statement of claim averred a mere common law liability on the part of the defendant, and, it having proved that he had accepted benefits as a member of its relief association, the court below sustained its contention that he could not recover under Reese v. Pennsylvania R. R. Co., 229 Pa. 340, and other cases. He called attention to the Act of Congress of April 22, 1908, (35 Stat. 65, chap. 149), which forbids the defense set up, the defendant having admitted that, at the time he'was injured, it was engaged, and he was employed by it, in interstate commerce. To this the defendant replied that, as the suit had been brought at common law, the Federal statute was without application. The rejoinder of the plaintiff was that, if he should have formally pleaded the Federal statute, he was entitled to amend. On his appeal from the judgment in favor of the defendant, his right to amend was sustained by this court, and the judgment was reversed with a venire facias de novo: Hogarty v. Philadelphia & Reading Railway Company, 245 Pa. 443. The second trial resulted in a verdict and judgment for the plaintiff, and, on defendant’s appeal from it, we are asked, in effect, to reconsider our action in sustaining the plaintiff’s appeal from the judgment entered on the first trial; and we must do so if what we then held is, as counsel for defendant contends, in conflict with certain rulings of the Supreme Court of the United states, one of which was made since this appeal was taken. The questions which counsel were directed to argue are, (1) Were the original pleadings sufficient to sustain judgment for the plaintiff? (2) Did the court below err in allowing the statement of claim to be amended?

The Federal Employers’ Liability Act of 1908 supersedes the laws of the states upon all matters within its scope, and, in cases involving accidents to the employees of railroad companies, when engaged in interstate commercé, the state laws must be regarded as nonexistent: Second Employers’ Liability Cases, 223 U. S. 1; St. Louis, San Francisco & Texas Ry. Company v. Seale, 229 U. S. 156; Kansas & Texas Ry. v. Taylor, 232 U. S. 363; Wabash Railroad Company v. Hayes, 234. U. S. 86; Hogarty v. Philadelphia & Reading Ry. Company, supra; but, while this is so, the common law liability of a railroad company engaged in intrastate commerce continues, and a right to recover from it for negligence, when so engaged, is still subject to common law rules: Wabash Railroad Company v. Hayes, supra; Hench v. Pennsylvania Railroad Company, 246 Pa. 1.

The action which the appellee brought against the appellant was strictly one at common law tO‘ enforce a common law liability. This conclusively appears, from the statement of his cause of action, which is as follows: “On February 1,1910, plaintiff was employed by defendant as freight conductor on a train of freight cars in its Philadelphia yards near American street and Lehigh avenue, and was directed by William L. Weyman, then acting for defendant, to place two of said cars (there being several in the train) on a certain track. In the performance of this duty plaintiff was required to lean over between two of the cars to uncouple them while the train was moving, and whilst so doing, through no fault of his own, his body struck a telegraph pole, he was thrown beneath the wheels, had three ribs and a collarbone broken and his right arm was crushed (afterwards amputated). The defendant was negligent in having the pole too close to the track or the track too close to the pole, there not being sufficient room between the two to permit safe performance of the service as directed, and in directing plaintiff to put the cars on the said track, the danger being unknown to plaintiff and no warning given.” Not a word is to be found in plaintiff’s statement indicating anything but a common law liability on the part of the defendant, and, to the charge therein alleged against it, it came into court with a complete common law defense. It was held, however, on plaintiff’s appeal, that, notwithstanding the common law cause of action which he had.set forth in his pleadings, the act of congress was controlling’, in view of the admission of the defendant that, at the time the plaintiff was injured, it and he were engaged in interstate commerce. After argument and reargument of this appeal, ordered of our own motion, we are of opinion that our view expressed on the first appeal is not in harmony with the rulings of the Supreme Court of the United States, and, as they are controlling, what we there held must yield' to them.

As the act of congress, and not the common law, gave the plaintiff a right to recover, Ms pleadings' ought to have shown that his case was within the Federal statute, and proof of this was a material part of it. In Garrett v. Louisville & Nashville Railroad Company, 235 U. S. 308, which was an action for damages under the Federal Employers’ Liability Act, the plaintiff sought to recover for the pecuniary loss to the parents of the deceased employee of the defendant company; but, as his declaration failed to set forth such loss, recoverable under the act of congress, it was held that, for this reason, there could be no recovery. In so holding, it was said: “Where any fact is necessary to be proved in order to sustain the plaintiff’s right of recovery the declaration must contain an averment substantially of such fact in order to let in the proof. Every issue must be founded upon some certain point so that the parties may come prepared with their evidence, and not be taken by surprise and the jury may not be misled by the introduction of various matters.......The request is now made that in view of all the circumstances- — especially the former undetermined meaning of the statute, this court remand the cause for a new trial upon the declaration being so amended as to include the essential allegation. But we do not think such action would be proper. The courts below committed no error of which just complaint can be made here; and the rights of the defendant must be given effect, notwithstanding the unusual difficulties and uncertainties with which counsel for the plaintiff found himself confronted.” This rule was observed in Allen v. Tuscarora Valley Railroad Company, 229 Pa. 97, where we held that the court below had improperly allowed an amendment of plaintiff’s statement after two years from the time of the accident. The amendment averred that, the defendant corporation, at the time of the committing of the grievances complained of, was engaged in interstate commerce. In holding that the amendment introduced a new and different cause of action, which was barred by the statute of limitations, we said,- through Mr. Justice Mestrezat : “The original statement, it is true, averred the injuries of the plaintiff and the alleged negligent act of the defendant by which they were caused, but there was no intimation in the statement that the carrier was engaged in interstate commerce or that the defendant’s cars were equipped with couplers in violation of thé act of congress. Proof of the existence of these two additional facts was required to sustain the action as amended, and this is one of the tests in determining whether the amendment introduces a different cause of action: Wabash R. R. Co. v. Bhymer, 214 Ill. 579 It is apparent that without this amendment the act of congress could have had no place in the case.” In Brinkmeier v. Missouri Pacific Railroad Company, 224 U. S. 268, in referring to the attempt to secure the advantage of the safety appliance acts of congress under insufficient pleadings, Mr. Justice Van Devanter said: “The petition, if liberally construed, charged that the defendant was a common carrier engaged in interstate commerce by railroad; that the cars in question were not equipped with couplers of the prescribed type, and that the plaintiff’s injuries proximately resulted from the absence of such couplers; but there was no allegation that either of the cars was then or at any time used in moving interstate traffic. The Supreme Court of the state held that in the absence of such an allegation the petition did not state a cause of action under the original act. We think that ruling was right. The terms of that act were such that its application de-/ pended, first, upon the carrier being engaged in interstate commerce by railroad; and, second, upon the use of the car in moving interstate traffic. It did not embrace all cars used on the line of such a carrier, but only such as were used in interstate commerce.”

While it must affirmatively appear by distinct averments in the statement .of a cause of action brought 'under the Federal Employers’ Liability Act that the defendant corporation was engaged in interstate commerce at the time of the grievances of which the plaintiff complains, special reference to the act of congress in the declaration is not essential. The act is controlling if the averments in the statement show that, at the time of the alleged negligent act by the railroad company, it was engaged in interstate commerce. In Seaboard Air Line Ry. v. Duval, 225 U. S. 477, the complaint of the plaintiff below made no distinct reference to the Employers’ Liability Act, but, as it did allege that the railroad company was operating a line of railroad between Portsmouth, Virginia, and Monroe, North Carolina, and that the plaintiff, while in its employment as baggagemaster and flagman upon a passenger train running between the said points, was negligently injured, it was held that a ground of action under the act of congress was sufficiently pleaded; and in Missouri, Kansas & Texas Ry. Company v. Wulf, 226 U. S. 570, the averment was that the plaintiff had been employed in the performance of his duties on a train bound frohi Parsons,-.in the State of Kansas, to Osage, in the State of Oklahoma, and it was held that the act of congress applied, because “it was sufficiently averred that the deceased came to his death through injuries suffered while he was employed by the defendant railroad company in interstate commerce.” For the same reason a statement was held sufficient in Grand Trunk Western Ry. Company v. Lindsay, 233 U. S. 42.

While a plaintiff, pleading only a common law right of action against a railroad company, may not invoke the Federal Employers’ Liability Act, the company, in its defense, may, of course, rely upon the act of congress, if it can show, or the testimony offered by the jplaintiff shows, that it was engaged in interstate commerce at the time the plaintiff was injured: St. Louis, Iron Mountain & Southern Ry. Company v. Hesterly, 228 U. S. 702; North Carolina Ry. Company v. Zachary, 232 U. S. 248; Toledo, St. Louis & Western Railroad Company v. Slavin, 236 U. S. 454.

In the case at bar, as already observed, plaintiff’s original statement showed nothing but a mere common law right of action against the defendant. By it the railroad company was notified to come into court and defend against a common law charge of negligence. Nothing within its four corners even hinted that plaintiff had undertaken to hold it liable under the act of congress which had given him a cause of action. In view of his receipt of benefits, he had no common law right of action, and so the record stood until more than four years had elapsed from the time he had acquired a cause of action against it under the Federal statute; but that statute provides that no action shall be maintained under it “unless commenced within two years from the day the cause of action accrued”; and we now come to the consideration of the second question, of which little need be said, as we regard it as settled by a ruling of the Supreme Court of the United States, announced since we heard this appeal.

In Seaboard Air Line Ry. v. Renn, 241 U. S. 290, the plaintiff sought to recover under the Federal Employers’ Liability Act, but it was contended by the defendant that his statement did not sufficiently aver a right to recover under that act. It averred that the defendant was operating a line of railroad “in Virginia, North Carolina and elsewhere.” Over the objection of the defendant the trial court allowed the plaintiff to amend by averring that the line of the defendant’s railroad extended between the City of Raleigh, in the State of North Carolina, and the City of Richmond, in the State of Virginia. On a writ of error taken by the defendant company the Supreme Court of the United States, in an opinion filed May 22, 1916, held that the amendment had not been improperly allowed, as no new Gause of action had been introduced. Mr. Justice Van Devanter, speaking for the court, said: “This was an action by an employee of a railroad company to recover from the latter for personal injuries suffered through its negligence. The plaintiff had a verdict and judgment under the Employers’ Liability Act of Congress, c. 149, 35 Stat. 65; c. 143, 36 Stat. 291, the judgment was affirmed, 86 S. E. 964, and the defendant brings the case here.. The original complaint was exceedingly brief and did not sufficiently allege that at the time of the injury the defend-' ant was engaged and the plaintiff employed in interstate commerce. During the trial the defendant sought some advantage from this and the court, over the defendant’s objection, permitted the complaint to be so amended as to state distinctly the defendant’s engagement and the plaintiff’s employment in such commerce. Both parties conceded that what was alleged in the amendment was true in fact and conformed to the proofs, and that point has since been treated as settled. The defendant’s objection was that the original complaint did not state a cause of action under the act of congress, that with the amendment the complaint would state a new cause of action under that act, and that, as more than two years had elapsed since the right of action accrued, the amendment could not be made the medium of introducing this new cause of action consistently with the provision in section 6 that ‘no action shalLbe maintained under this act unless commenced within two years from the day the cause of action accrued.’ Whether in what was done this restriction was in effect disregarded is a Federal-question and subject to reexamination here, however much the allowance of the amendment otherwise might have rested in discretion or been a matter of local procedure : Atlantic Coast Line Railroad v. Burnette, 239 U. S. 199. If the amendment merely expanded or amplified what was alleged in support of the cause of action already asserted, it related back to the commencement of the action and was not affected by the intervening lapse of time: Texas and Pacific Ry. Co. v. Cox, 145 U. S. 593, 603-604; Atlantic and Pacific R. R. Co. v. Laird, 164 U. S. 393; Hutchinson v. Otis, 190 U. S. 552, 555; Missouri, Kansas & Texas Ry. Co. v. Wulf, 226 U. S. 570, 576; Crotty v. Chicago Great Western Ry. Co., 95 C. C. A. 91, 169 Fed. 593. But if it introduced a -new or different cause of action, it was the equivalent of a new suit, as to which the running of the limitation was not theretofore arrested: Sicard v. Davis, 6 Pet. 124, 140; Union Pacific Ry. Co. v. Wyler, 158 U. S. 285; United States v. Dalcour, 203 U. S. 408, 423. The original complaint set forth that the .defendant was operating a line of railroad in Virginia, North Carolina and elsewhere, that the plaintiff was in its employ, that when he was injured he was in the line of duty and was proceeding to get aboard one of the -defendant’s trains, and that the injury was sustained at Cochran, Virginia, through the defendant’s negligence in permitting a part of its right of way at that place to get and remain in a dangerous condition. Of course, the right of action could not arise under the laws of North Carolina when the causal negligence and the injury occurred in Virginia; and the absence of any mention of the laws of the latter state was at least consistent with their inapplicability. Besides, the allegation that the defendant was operating a railroad in states other than Virginia was superfluous .if the right of action arose under the laws of that state, and was pertinent only if it arose in interstate commerce, and therefore under the act of congress. In these circumstances, while the question is not free from difficulty, we cannot say that the court erred in treating the original complaint as pointing, although only imperfectly, to a cause of action under the law of congress. And this being so, it must be taken that the amendment merely expanded or amplified what was alleged in support of that cause of action and related back to the commencement of the suit, which was before the limitation had expired.” It clearly appears from this last utteranee of the Supreme Court of the United States that if Benn’s original complaint had averred merely.a common law right of action against the railway company, with nothing in it indicating that the employer was operating a line of railroad from one state into another, the amendment would have been improperly allowed, for the reason that it introduced a new cause of action under the Federal Employers’ Liability Act, which had been barred by the express terms of that act after two years from the time of the accident. What was held in the Renn case logically followed what the court had said in Garrett v. Louisville & Nashville Railroad Company, supra.

On October 20, 1914 — nearly five years after this appellee was injured — the court below, under what we held on the first appeal, allowed his statement to be amended as follows: “On February 1, 1910, the defendant was engaged as a common carrier by railroad in commerce between the several states and subject to all the provisions of the Act of Congress of April 22, 1908 (35 Stat., G5 Ch. 149), the plaintiff was employed by defendant as freight conductor, in such interstate commerce, on a train of freight cars in the Philadelphia yards of the defendant near American street and Lehigh avenue, and was directed by William L. Weyman, then acting for defendant, to place two of said cars (there being several in the train) on a certain track.” The allowance of this amendment was excepted to by the defendant, on the ground that it introduced a new cause of action under the Act of Congress of April 22,1908, which was barred. Under Seaboard Air Line Railway v. Renn, it was improperly allowed, and proof in support of it, if admitted by the court below, would not have helped the plaintiff. The same is true of the admission by the defendant, that, when he was injured, it was engaged and he was employed by it in interstate commerce. At the time the admission was made, and for nearly three years before, all liability of the defendant under the act of congress had ceased, for none could have been enforced against it except by an action brought within two years from the time the injuries wére sustained. The admission was not that the plaintiff had a cause of action under the act of congress, but merely that, at the time of the accident, and for two years thereafter, the defendant might have been liable under the act, which, however, was no longer availing to the plaintiff.

The assignments of error are sustained, the judgment below is reversed and is here entered for the defendant.