No. 2398 | 3rd Cir. | Dec 6, 1918
In the court below Devine brought suit against the Buffalo, Rochester & Pittsburgh Railway Company to recover for damages sustained by him while working as a bralceman on a train on its road. He recovered a verdict, and on entry of judgment thereon the railway company sued out this writ.
From the plaintiff’s statement it appears the defendant’s road extends from Pittsburgh, Pa., to Buffalo, N. Y., and the ground of action was that the railway had failed to comply with the federal Safety Appliance Act (Act March 2,' 1893, c. 196, § 2, 27 Stat. 531 [Comp. St. 1916, § 8606]), in that the couplers between which the plaintiff was injured “would not at said time couple with each other automatically upon impact, without the necessity of employes of défendant going between the ends thereof to render personal assistance.” The said road being itself a highway of interstate commerce generally, and the negligence charged being a failure on its part to comply with the federal Safety Act, it follows that, if the plaintiff sustained his charge of the defendant’s statutory negligence, and that his injury was caused by such negligence, he was entitled to recover, even if he was not himself engaged in interstate commerce when he was injured. Railroad v. Rigsby, 241 U.S. 33" court="SCOTUS" date_filed="1916-04-17" href="https://app.midpage.ai/document/texas--pacific-railway-co-v-rigsby-98712?utm_source=webapp" opinion_id="98712">241 U. S. 33, 36 Sup. Ct. 482, 60 L. Ed. 874" court="SCOTUS" date_filed="1916-04-17" href="https://app.midpage.ai/document/texas--pacific-railway-co-v-rigsby-98712?utm_source=webapp" opinion_id="98712">60 L. Ed. 874. Such being the case, the proof
.Further complaint is made that there was no such proof of the plaintiff’s earning power as warranted the submission of that question to the jur}. We have examined the record, and we find proof of the plaintiff’s earning capacity and actual earnings before the accident. That proof of his earning capacity after the accident was not given was because the defendant objected to such proof, and it cannot now he heard, in the face of the court sustaining such objection, to urge as error that such proof was not furnished.
The judgment below is affirmed.