Baltimore & Ohio R. R. v. Whitacre

Stockbridge, J., delivered the opinion of the Court. This Court is now called upon, for the first time, to apply in an action to recover for personal injury the provisions of the Act of Congress of April 22nd, 1908, Chap; 149, entitled “An Act Relating to the Liability of Common Carriers by Railroad to Their Employees in Certain Oases.” The special importance lies in the fact that under that Act the established rules of the common law with regard to' contributory negli ⁴²³ gence, negligence of a fellow-servant and. assumption of risk were radically modified. The ease presented brings up' for review the rulings of the trial Court upon demurrers to the declaration, forty-six exceptions reserved to the admission or rejection of evidence, and one to the action of the Court upon the prayers. It will not be necessary, however, to consider each one of these in detail, four of the bills of exception, the fifth, seventeenth, fortieth and forty-third, having been abandoned by the counsel for the appellant in his brief, and the large proportion of the others will he sufficiently dealt with in an expression of the, views of this Court upon the Act in question, as applied to this particular case.

The important facts in the case are as follows: Harvey W. C. Whitacre had been for several years an employee of the Baltimore and Ohio Eailroad Company as a brakeman, and at the time of the happening of the accident in question, June 23rd, 1913, was what is known as front brakeman on a freight train, having a run from Cumberland, in the State of Maryland, to the Cumbo Yards, near Martinsburg, in the State of West Virginia. The railroad was at the time a common carrier, engaged in doing interstate business, and the employment of Whitacre was in the conduct of interstate business. On the morning of the day named, Whitacre was called about 1 o’clock, with orders to join a train in his capacity of brakeman, which was to leave Cumberland at 2 o’clock. In response to that call, at or about the appointed time, he reported at the caller’s office, and then proceeded through the yard of the railroad company to join the engine, which was to he coupled to the train at the Evitts Creek Yard, some half-mile distant.

The locomotive was then standing upon a “ready track,” and as the brakeman approached it he did not see the engineer hut did see the fireman, and Whitacre put on his working clothes. He then inquired of the fireman whether he was ready to start, and he received the answer, “Ho, not quite.” “The tool hoy had ⁴²⁴ not been there and had left him no tin cup, and he asked me to go and hunt the tool boy and get a tin cup.” This is the testimony of the plaintiff himself. The fireman’s version differs somewhat. Acting upon what the plaintiff understood to be the order or request of the fireman, he did start to look for the tool boy and tin cup, and saw at a little distance a moving light, which he followed, supposing it to be a lantern in the hands of the tool boy.

Suddenly the light disappeared around some object, subsequently ascertained to be an engine. The plaintiff then took a few steps backward and fell into a cinder pit, -which was near the center of the yard, and used for the purpose of raking the cinders into from the firepan of the locomotive. This cinder pit was of large size, approximately 180 feet in length by 50 feet in breadth, and varying in depth from 3% to 9 feet. It was of recent construction, having been in use but about six months, and was what is known as a water pit as. distinguished from a dry pit.

There was no railing around the pit, but at or near the center it was spanned by iron or steel beams, upon which was worked a travelling crane, that was used in the daytime for the removal of cinders from the pit. The allegations contained in the declaration, and borne out in the testimony, were to the effect that it had been raining; that the night was somewhat thick and foggy, and that the top of the water in the pit was covered to a greater or less extent with ashes, which made it difficult, if not impossible to distinguish it in appearance from solid ground. When the plaintiff fell into the pit he was wetted up to- his waist, and fell across an iron bar or rail, but clambered out, returned to his engine without the tin cup, and the engine proceeded to the Evitts Creek Yard, where it was attached to the cars to be hauled to the Gumbo Yard. The plaintiff performed a portion, if not all, of his regular duties as brakeman, which involved getting down and coupling and uncoupling the air pipes between the tender of the engine and the front freight car.

This operation was repeated several times between ⁴²⁵ Cumberland anti the Cumbo Yard. He did, however, while ■on the trip complain of his accident to the conductor of the train, and an accident report was made out at Hansrote, one of the intermediate stations. From the Gumbo Yard the plaintiff returned to Cumberland on a passenger train. The following day ho consulted a physician, who after examining him found a rupture for which an operation was performed, and from which ho recovered.

After some months the plaintiff complained of pain in his spine, for which he was treated by applying a white hot iron; and still later there developed what was claimed to he a fracture of the bone of the thigh containing the socket, with which the head of the femur articulates. These are in substance the injuries to recover for which the suit was brought. Some others were set out in the •declaration, but not substantiated by the proof. The declaration in its various counts charges negligence, negligence in the omission to supply the tin cup, negligence in the construction and maintenance of the cinder pit, and inferentially negligence in allowing the ashes deposited in the cinder pit, or some portion of them, to obey the laws of gravitation, and iloat on the top of the water.

The grounds upon which liability is denied by the defense are, absence of negligence upon the part of the railroad company, both as to the tin cup and the construction of the pit; secondly, that the risk, if risk there was, was one assumed by the plaintiff when he entered upon the employment, and it was further urged that in leaving the engine and going to look for the tool hoy, the plaintiff was doing an act not materially or directly connected with interstate commerce, and that, therefore, the Act of Congress had no application. The first question to be answered is as to the applicability of the Act of Congress. It is difficult to reconcile the various decisions, even to reconcile those of the same Court. A few propositions, however, are clear.

These are, that the Act was intended to apply only in certain cases, thus recognizing that there was a class of cases which might arise between a ⁴²⁶ common carrier by railroad and its employees, in which the Act had no applicability. This was distinctly recognized in the case of the Illinois Central R. R. Co. v. Behrens, 233 U. S. 473 , in an opinion by Justice Van de Vanter, and is further emphasized by section 1 of the Act: “This clause has two branches; the one covering the negligence of the officers, agents or employees of the carrier * * *, and the other relating to the defects and insufficiencies in the cars, engines, appliances, etc.” But plainly with respect to the latter, as well as the former ground of liability, it was the intention of Congress to base the action on negligence only, and to exclude responsibility of the carrier to its employees for defects and insufficiencies not attributable to negligence * * To hold that under the statute the railroad company’s liability for the injury or death of an employee resulting from any defects or insufficiencies of its cars, engines, appliances, etc., however caused, is to take from the Act the words “due to its negligence.” The plain effect of these words is to condition the liability upon negligence.” And in any given case the measure of the responsibility of the carrier is that of ordinary care. Seaboard Air Line v. Horton, 233 U. S. 501 . The argument and brief of the railroad company devoted much attention to the question of primary negligence; but under the wording of the Act this contention can not be held sound; if there was any act of negligence upon the part of the railroad company, then even though there was contributory negligence upon the part of the plaintiff, or of a fellow servant, and the plaintiff was, at the time of the happening of the accident, engaged in interstate commerce, and there had been no assumption of the risk upon his part, then the Act must be held to apply.

That the plaintiff must be regarded as being engaged in interstate commerce at the time of the happening of the accident seems conclusively settled by two cases. In the P., B. & W. R. R. Co. v. Tucker, 35 App. D. C. 123, subsequently ⁴²⁷ affirmed per curiam by the Supreme Court, Tucker was killed by being struck by an engine when he was on the premises of the defendant, in response to its call to assume the duties-he had been engaged by the defendant to assume for their mutual interest and advantage; and it was there laid down that the obligation of the master commences when the servant, in pursuance of his contract with the master, is rightfully and necessarily upon the premises of the master. In the No. Car. R. R. v. Zachary, 232 U. S. 248 , it was held that the acts of an employee in preparing an engine for a trip to move freight in interstate commerce, although done prior to the actual coupling-up of the interstate cars, are acts done while engaged in interstate commerce.

In this latter case the party for whose death the action was brought was a fireman on a locomotive of the Southern Railway, he had prepared his engine for the trip and was crossing the railroad yard from Ms engine to go to his boarding-house; and had passed behind one locomotive, when he was run down by a switching engine on an adjoining track. Certainly the act of the fireman in going to his boarding-house was no more an act connected with interstate commerce than was the act of Whitacre in hunting for a tool hoy in order to obtain a tin cup for the use of the crew on its trip. An endeavor was made in the evidence to predicate the-act of negligence of the company upon the failure of the-tool hoy to supply the locomotive with a cup, an attempt which was but partially successful as it was not satisfactorily shown that the tin cup was an absolute essential to the movement of the train, which in fact did move without it, and the evidence of the fireman tended rather to show that even if it had been present, its use, according to individual taste, might have been dispensed with in favor of the lid of the water cooler. In the prayers which, were offered at the conclusion of the-case, the tin cup as a negligent omission on the part of the company seems to have been lost sight of, and the negligent ⁴²⁸ .act relied on, at this stage, appears to have been the method of construction and maintenance pf the cinder pit.

There was a practical unanimity of evidence that the pit itself was .admirably constructed according to the best modern engineering ideas of what such a pit should be, but the negligence claimed was of two descriptions: one, the