221 F. 1012 | E.D. Pa. | 1915
The instant case, as do all cases of like general character, presents a double aspect. In one of its phases it is an action founded upon the general principles of the law of negligence. In the other, it is based upon those same principles as modified by the statutes of the United States. The presentation of plaintiff’s case implies the admission, which, indeed, the facts of the case compel, that there can be no recovery except under the acts of Congress. The application of the acts of Congress depends upon certain facts, an essential one of which, unfortunately for the plaintiff, is absent from this record. One of the essential facts is that the defendant railroad must be a common carrier engaged in interstate commerce. This fact is conceded. The other is that the plaintiff’s decedent must have been employed in interstate commerce at the time he met his death. The record is absolutely barren of any evidence of this latter fact. A verdict for the defendant was therefore clearly imperatively called for. The duty of finding against a litigant because of the absence of legal evidence of a fact, which may nevertheless exist, cannot be otherwise than reluctantly, and even ungraciously, performed. The rights of defendants, however, as well as those of plaintiffs, must be safeguarded.
The case for the plaintiff had manifestly been prepared and was presented as supported by the theory upon which a recovery had been permitted by the court below in the case of Behrens v. Railroad (D. C.) 192 Fed. 581. The theory was that when the carrier was engaged in commingled interstate and intrastate transportation, and the person injured or killed had a general employment in like commingled work, the case was one within the acts of Congress. Before the present case was called for trial, however, the judgment of the District Court in Behrens v. Railroad had been reversed on the -very ground of the trial judge there being convicted of error in holding that the fact of such commingled employment would support a recovery. Illinois R. R. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163. Indeed, it was upon the authority of the Behrens Case that the instructions given the jury in the present case were based.
This further thought was in the mind of the trial judge. The private siding upon which the cars spoken of were being shunted was of course, connected with the main tracks of the defendant. This made necessary the protection of the switch during its use. This was afforded by sending out a flagman to stop any on-coming train on the connecting track. The protection thus afforded was a double protection. It safeguarded the local train, but also the on-coming train as well. If, therefore, the latter were an interstate train, Shanley, who was sent out on this duty, might be said to have been employed in interstate commerce. The inquiry was made of counsel for plaintiff whether such a fact, if it was the fact, would be of value, and a full opportunity given to offer evidence of it. If such evidence had been admitted, it would have been in the case for whatever it had been worth. If the offer had been made and objected to, its relevancy could have been determined. No such offer of evidence was made, however; counsel being of opinion that it was of no value. The conclusion, therefore, must be either that no interstate fact could have been shown, or that the kind of business in which the to be flagged train was engaged was of no relevancy. At the argument of this motion the case
The rule for a new trial is therefore discharged, and defendant has leave to move for judgment on the verdict.