201 A.D. 78 | N.Y. App. Div. | 1922
Lead Opinion
To sustain this judgment it must appear that the deceased at the time of his injury was engaged in interstate commerce. On April 27, 1917, three cars loaded with coal reached Canandaigua, N. Y., from Pennsylvania. The coal was consigned to the A.'N. Hollis Coal Company of the former place, which company has a private siding or switch connected with the defendant’s road. The loaded cars were placed on this siding to be unloaded by the consignee. April twenty-ninth two of the cars had been unloaded. The third car was in such a position on the siding that it could not be conveniently unloaded. This loaded car was between the two which had been unloaded. The yard' crew of which the deceased was conductor entered the siding with an engine for the purpose of readjusting the position of the loaded car. Incidental to that duty and according to custom it was the purpose of the crew to remove the empty cars from the siding and return them to the yard. While coupling the engine to the cars the deceased received his injury, due, as it is claimed, to defective automatic couplers, in violation of the provisions of the Federal Safety Appliance Act. (See 27 U. S. Stat. at Large, 531, § 2.) It was stipulated by the defendant that after delivery of coal “ it was the general practice and custom of the railroad to return them [the empty cars] as soon as practicable to the mines.” There is no evidence, however, that these two empty cars were under orders to be returned or that the crew was about to place them in a train for that purpose or that the work had any reference to their homeward journey. On the contrary, the only proper inference is that they were to be placed on the storage track or in some convenient place awaiting further orders. As stated, one of the three cars had not yet been unloaded, and, as a matter of fact, after the accident the two empty cars were left on the siding. In fact the stipulation is “ that following the unloading of these cars they were returned to the yard in Canandaigua.”
Under the foregoing circumstances it seems clear that the work had reference merely to the readjustment of the position of the several cars on the siding of the consignee or in the yard of the defendant for their convenience and did not involve any interstate movement of the cars. If it be assumed that the primary purpose of the crew was to remove the empty cars from the siding, the
The judgment and order denying the motion for a new trial should be reversed and the complaint dismissed, with costs.
The order denying plaintiff’s motion to correct the answer of the jury is affirmed, without costs.
As to judgment and order, all concur, except Hinman, J., dissenting, with an opinion; Kiley, J., not sitting.
Order denying plaintiff’s motion to correct answer of the jury unanimously affirmed, without costs; Kiley, J., not sitting.
Dissenting Opinion
The plaintiff has had judgment for damages in an action brought under the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143) for the death of plaintiff’s intestate, brought about by his injury while acting as an employee of the defendant as the result of the negligence of the defendant.
It was stipulated on the trial that three cars of coal were shipped over the defendant’s line from Pennsylvania to Canandaigua, N. Y., for delivery to the A. N. Hollis Coal Company of the latter place; that they were placed upon the Hollis siding (a private switch) on April 27, 1917; that two of the cars were unloaded on that and the following day; that it was the usual and general practice to return empty coal cars as soon as practicable to the mines in Pennsylvania. The car which had not been unloaded had been placed with the others by the railroad at a point where Hollis could unload it by moving it by hand or gravity down a grade to his elevator. It had been carried past the elevator with the other cars to a point where it could not be moved back by hand. It was on these cars, located on the Hollis siding, that Willis Camp, the plaintiff’s intestate, was working at the time he sustained his injuries, resulting in his death,
The Hollis siding runs in a northerly and southerly direction, the switch connection with defendant’s line being at the north end. When they entered the switch they found the north car was empty. The elevator at which the middle car had to be unloaded was south of the place where the cars were standing. To remove the two empty cars necessitated coupling the cars together and hauling them out onto the main track in order to get the empty south car past the loaded car. Their purpose was to pull out the empty cars, then place the loaded car in front of the elevator, and then take the two empty cars to the storage track of the company for their trip back to Pennsylvania, thus completing their interstate journey. Camp was caught between the cars in the effort to couple them.
This was sufficient evidence to justify the jury in finding that Camp was engaged in interstate commerce at the time. Even though the loaded car was to be replaced in a position where it could be unloaded at the elevator, the empty cars were being removed to complete their interstate journey. In order to remove the empty cars to the south, it was necessary to remove the loaded car also. It was in this first maneuver to remove the empty cars to the south that the injury occurred. Thus it cannot be said that Camp was not engaged in interstate commerce at the time of his injury. Where an accident happens in New York State
The theory upon which the case was presented to the jury was a violation by defendant of that provision of the Federal Safety Appliance Act (27 U. S. Stat. at Large, 531, § 2) which makes it unlawful for an interstate carrier “ to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact.” In construing this provision the courts have held that the statute places upon the railroad an absolute duty to equip its cars with couplers which will at all times and under all normal conditions of railroading, couple automatically upon impact. (Delk v. St. Louis & San Francisco R. R., 220 U. S. 580; Chicago, R. I. & Pac. Ry. v. Brown, 229 id. 317; Texas & Pacific R. Co. v. Rigsby, 241 id. 33; Johnson v. Southern Pacific Co., 196 id. 1; Davis v. Minneapolis & St. L. Ry. Co., 134 Minn. 369; 159 N. W. Rep. 802.)
There was testimony offered by the plaintiff which would justify the jury in finding that at least one or two unsuccessful attempts were made to couple the cars by impact, before the plaintiff’s intestate went between them. The failure of the couplers to function under the circumstances was sufficient to go to the jury. (Minneapolis & St. Louis R. R. Co. v. Gotschall, 244 U. S. 66; Atlantic City R. R. Co. v. Parker, 242 id. 56; Willett v. Ill. Cent. Ry. Co., 122 Minn. 513; 142 N. W. Rep. 883; Hohenleitner v. So. Pac. Co., 177 Fed. Rep. 796; Pless v. N. Y. C. R. R. Co., 189 App. Div. 261.)
It made no difference that the cars were being operated on a private switch as that has been held to be a use on the railroad’s “ line ” within the meaning of section 2 of the Safety Appliance Act. (Gray v. Louisville & N. R. Co., 197 Fed. Rep. 874.)
A question of further negligence in the case, involving negligence of the engineer in backing the engine without waiting for a signal from Camp, is presented upon the briefs, but it should not be considered here in support of the verdict since no such theory
Another point in the appeal which seems to involve a novel question in this State relates to whether the answer of the jury to a special question is inconsistent with the general verdict, requiring the reversal of the judgment for the plaintiff under section 1188 of the Code of Civil Procedure. The question was as follows: “ Question Two. At the time stated in Question One was the defendant, through its servants, moving a car not equipped with couplers, coupling automatically by impact? ” The jury answered this question in the negative.
The question submitted to the jury was framed practically in the language of the statute. After the case had been submitted, the jury returned into court and requested further instructions in relation to the meaning of this question.
They asked the court in substance whether it meant the cars were equipped with automatic couplers, or whether they would have coupled on impact if in perfect condition. To this question the court responded: “ There isn’t any question in the evidence but whát the cars were originally equipped with improved couplers, that coupled by impact. The question is, in dispute, whether these couplers at that time were in such condition that they would couple by impact. That is, whether they had become worn or defective or out of order in some wajr so that they would not operate properly. There is no question, as I have already said, but what the couplers as originally constructed and put on these cars were of a type that would couple by impact. The question is * * * at the time of the accident, were they in condition so that the impact of the cars together would cause them to couple automatically or were they in some defective condition so that a man had to go in there to do something with his hands in-order to get them to couple. * * * You must determine from the evidence whether the cars moved together and they did not couple, whether they were defective or whether that was caused by its being on a curve or because they were on a down grade or some other reason. The question that you must determine and the question that seems to be in your mind, is whether these couplers were, at the time, in such condition that they did not couple automatically.”
The jury retired and finally brought in a general verdict for the plaintiff but answered question No. 2 in the negative.
“ Where a special finding is inconsistent with a general verdict, the former controls the latter, and the court must render judgment
According to a fair interpretation of the question as framed, the idea conveyed was whether the car was equipped with that type of coupler which couples automatically by impact, whereas the courts have held, as we have seen, that the requirement of the statute places upon the railroad an absolute duty to equip its cars with couplers which will at all times and under all normal conditions of railroading couple automatically upon impact.
In reading the bare question, framed as it was in the language of the statute, a jury would not have the benefit of the illumination of the statutory expression in question, gleaned from careful study of the intent and purpose of the statute as a whole. The provision of the statute in question here was designed to promote the safety of employees upon railroads. The railroad did not satisfy this fundamental purpose by merely equipping a car with an approved type of coupler. It must keep it in such condition that it would accomplish the purpose. This refinement came from a close judicial study of the statutory environment of the coupler provision and was not indicated by the provision itself unaided by the context.
Taking the situation presented to this jury, should we expect an answer to the naked question as framed or should we expect an answer to the question as interpreted by the courts? If we are in doubt, how can we say which question the jury answered? The answer “ no ” was susceptible of an interpretation in harmony with the general verdict and it was equally susceptible of an interpretation inconsistent with the general verdict. The jury were asked to find upon a question of fact, not a question of law, and when the question was put in the language of the statute, it did not necessarily ask whether the statute had been violated. As interpreted by the courts, the statute could be violated in two ways — by not using a so-called automatic coupler at all and by not keeping one in proper condition. The question did not indicate any reference to the condition of this coupler. How then can we say that the jury has passed upon that particular violation rather, than the other?
question that you must determine, and the question that seems to be in your mind, is whether these couplers were at the time in such condition that they did not couple automatically.”
It is perfectly apparent that an answer to either of these two oral questions should be in the negative in order to be in harmony with the general verdict. The jury’s answer was in the negative. I think it is fair to say that the jury intended to answer the question as orally restated. At least we would have to admit grave doubt. If we were in doubt as to whether the impression carried away by the jury was to answer the written question as interpreted or the question as orally restated by the court, how could we say that the jury’s answer referred to the one and not to the other? Having gone outside the ambiguous question itself to find the intent of the jury, it would be useless to try to predicate a finding of such intent upon something equally ambiguous and doubtful. With “ confusion worse confounded ” we could only turn again to the question as written, and unaided by interpretation we could not say that the answer to it was so inconsistent with the general verdict that the latter could not stand.
Under these circumstances I think the general verdict should stand and that the special finding should be disregarded because not necessarily in conflict with the general verdict.
There is one further contention raised against the judgment. The defendant contends that the evidence was insufficient to establish a legal marriage between the plaintiff and plaintiff’s intestate, so as to entitle her to the benefits of a recovery under the Federal Employers’ Liability Act.
Considering the evidence from the standpoint most favorable to the plaintiff, the jury were justified in finding that a valid common-law marriage had existed between her and Willis Camp for many years and still existed at the time of his death. The difficulty arises over the fact that she had been married to one Edward
The ceremonial marriage between the plaintiff and Camp was void, for the reason that less than five years had elapsed between the time of the disappearance of Lowry and her marriage with Camp. Although this marriage was void, the jury were justified in finding that there existed between the plaintiff and Camp a valid common-law marriage, as she and Camp had lived together from"’the time of their marriage in 1907 up to the time of Camp’s death in 1917 as husband and wife under circumstances whereby such a marriage could be found to have existed. (Davidson v. Ream, 178 App. Div. 362; Matter of Ziegler v. Cassidy’s Sons, 220 N. Y. 98; Matter of Biersack, 96 Misc. Rep. 161; Fordham v. Gouverneur Village, 5 App. Div. 565; Matter of McKinley, 66 Misc. Rep. 126.)
Such a marriage was not void but simply voidable. It is valid as to all the world, unless the first husband reappears and institutes an action to annul the same. (Gall v. Gall, 114 N. Y. 109; Matter of Del Genovese, 56 Misc. Rep. 418; Dom. Rel. Law, § 7; Code Civ.
The judgment "and order denying the motion for a new trial should be affirmed, with costs. The order denying plaintiff’s motion to correct the answer of the jury should be affirmed, without costs.
Judgment and order denying motion for a new trial reversed and complaint dismissed, with costs.
Order denying plaintiff’s motion to correct answer of the jury unanimously affirmed, without costs.
Upon a reargument of the appeal from the judgment and order denying a motion for a new trial, directed on May 10, 1922 (202 App. Div. 768), the following memorandum was handed down on May 24, 1922:
In view of the decision in Ward v. Erie R. R. Co. (230 N. Y. 230) we consider that the grounds of our former decision herein (201 App. Div. 78) are not now tenable. We think, however, that the inconsistency of the general verdict with the special verdict found requires a reversal and a new trial.
Judgment and order reversed and a new trial granted, with costs to the appellant to abide the event.
All concur, except Hinman, J., dissenting on the ground stated in his opinion on the former argument.
