254 Pa. 494 | Pa. | 1916
Opinion by
This was an action of trespass brought on behalf of Edward B. Stoker, a minor, by his father as next friend, and by the father individually, against the Philadelphia & Reading Railway Company to recover damages for injuries resulting to the minor while employed by the defendant company on March 20, 1912. He had at that time been employed for about one month, as an engine wiper in the round house. Upon the night in question he worked outside, with an engine hostler, until nearly daylight, when he was sent by the hostler on an errand to the round house. On his return plaintiff crossed a number of switch tracks, and as he was about to step upon another track he was struck by a boxcar that was being shifted, and was injured. In the statement of claim, defendant was charged with negligence in moving the cars without lights or a brakeman upon them. It was also averred that the brakes on the cars were not' used or operated by the engineer of the locomotive shifting the train, which it was alleged whs in violation of certain acts of congress, as supplemented by the order of the Interstate Commerce Commission of June 6,1910. Negligence was also averred on the part of defendant, in not having a sufficient number of men in the crew, managing the cars that were being shifted, and in not promulgating and enforcing sufficient rules to govern the operation of shifting cars. It was finally averred that the negligence of which complaint was made, was in violation of the laws of Pennsylvania, and of the acts of congress. Upon the trial, there was no evidence tending to show that the plaintiff was at the time of the injury in any way engaged in interstate commerce, and his counsel abandoned that claim, and said that they did
We do not regard the fact that the averments in the statement are not separated into formal counts as making any essential difference. By the Practice Act of May 25, 1887, P. L. 271, Section 3, it is provided that “the plaintiff’s declaration......shall consist of a concise statement of the plaintiff’s demand.” The statement in the present case complies with that requirement. If it is open to criticism for setting forth causes of action that are in any way inconsistent, that objection should have been raised by demurrer. Having pleaded to the statement, defendant must be held to have waived such an objection: Whitney v. Haskell, 216 Pa. 622; Burkholder v. Beetem, 65 Pa. 496.
In Missouri, Kan. & Tex. Ry. Co. v. Wulf, 226 U. S. 570, a question involving a similar principle arose. In that case the original petition alleged a cause of action based on a Kansas statute, which was recited. No reference was made to the Federal statutes. Subsequently, but after the statute of limitations had intervened, the petition was amended by adding an averment of liability under the acts of congress. The amended petition, after reciting the facts, averred (p. 573) : “That by virtue of both the laws of the State of Kansas, where the said Fred S. Wulf was killed, and the acts of Congress of the United States of America, a right of action is provided for injuries resulting in death in the manner and form and in the occupation that deceased was engaged in at the time of his death.” The Supreme Court of the United States held that it was not error to permit the petition to be amended, because it was unnecessary to refer specifically to the acts of congress, the facts averred being sufficient to disclose a cause of action under their provisions, and therefore recovery might have been had for the statutory liability under the original
In the case at bar, it was not necessary to amend, as the statement set forth facts which constituted a cause of action under the laws of Pennsylvania. And when the evidence failed to show that plaintiff was injured while engaged in Interstate Commerce, he was entitled to proceed under the state law, which is superseded by the Federal law only in cases where the parties are engaged in Interstate Commerce. In the case of Hench v. Penna. R. R. Co., 246 Pa. 1, cited by the court below, and by appellee, no claim was made under the common law or the State law. The only question decided was whether the evidence was sufficient to go to the jury on the question whether the plaintiff’s husband was engaged in interstate commerce when killed. The negligence charged was failure to provide automatic couplers as required by the Act of Congress of March 2,1893, 27 U. S. Stat. 531, c. 196. This would not constitute negligence under the common law. Mr. Justice Elkin said (p. 4) : “If the action had been brought at common law or for
In the case at bar, the allegation in the statement is, not that defendant in its business of a common carrier is limited to interstate commerce, but it is definitely averred that defendant is in that business, “among others.” This expression may fairly be taken as an intimation that its business includes other departments, such as intrastate commerce. And when the words are considered in connection .with the allegation of facts which would constitute negligence under the laws of Pennsylvania, they are consistent with the suggestion of a cause of action under the State law. When, at the trial, all claim of right to recover under the Federal statutes was withdrawn, there remained in the statement, as we have found, enough to support a right of action under the State law.
Turning to the evidence, however, it is difficult to find therein anything sufficient to support the charge of negligence against defendant. The accident happened at a point in the railroad yards where there was neither crossing, nor path, and there is nothing to indicate that the presence of plaintiff upon the switch tracks at that point was to have been anticipated by the other employees, who were in charge of the switching operations. They had a right to presume that employees in the yard, familiar with the use of the tracks, would be on the lookout for moving cars. But if it be assumed that there was some slight evidence of want of care upon the part of defendant, sufficient to carry that question to the. jury, yet the proof of contributory negligence upon the part of plaintiff was so clear, that the responsibility of dealing with it, was for the court. Plaintiff had crossed
We can see no escape from the conclusion that the plaintiff, Edward B. Stoker, was clearly guilty of contributory negligence in stepping directly into the path of an oncoming car, or in placing himself so near to it as to be injured thereby, and that if the trial judge had considered that question, he would have been in duty bound to so rule, as matter of law. The entry of judgment for defendant, non obstante veredicto was therefore, justified.
The assignment of error is overruled, and the judgment is affirmed.