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V.

PENNSYLVANIA SUPREME COURT. | March 2, 1893. In such a case the burden

is on the party suing to prove the facts STELLA M. HENCH, Admrx., etc., of Ed necessary to show a violation of the Fedgar S. Hench, Deceased,

eral statutes, and that the injured party

was engaged in interstate commerce or with PENNSYLVANIA RAILROAD COMPANY, | its instrumentalities at the time of the acAppt.

cident.

In the case at bar the injured party was (246 Pa. 1, 91 Atl. 1056.)

engaged as a brakeman on a shifting crew Evidence to show interstate character in a freight yard, where all kinds of freight

of work in which servant is engaged. were received and distributed. If the action

1. To entitle a brakeman who is a member had been brought at common law or for of a shifting crew in a freight yard to hold the violation of a state statute, the questhe railroad company liable for personal in tion of the character of the commerce in juries under the Federal employers' liability which the decedent was engaged at the time act or safety appliance act, he must show of his injury would have been immaterial; that at the time of the injury he was engaged but plaintiff elected to bring her suit un. in interstate commerce or with its instrumentalities, and this burden is not met merely der the acts of Congress, as she clearly had by showing that in the yard where he was the right to do, and thus assumed the bur. employed cars containing interstate as well den of making out a case under the Fedas intrastate shipments were handled. eral statutes. The controlling question for Same suppression absence of rec. decision here is whether the evidence ad. ord.

duced at the trial was sufficient to make 2. Failure of a railroad company to pro- out a prima facie case under the acts of duce in response to a subpæna the record of Congress relied on to sustain a recovery. the cars with which an employee in a yard Appellant contends the evidence does not was at work when injured does not amount show that in the performance of his duties to a suppression of evidence which will rai a presumption against the company, if the as brakeman the deceased husband had evidence is uncontradicted that no such rec. anything to do with interstate commerce, ord was kept.

or that at the time of the injury he was

engaged in such commerce, or that the cars (July 1, 1914.)

being shifted in the freight yard where deA PPEAL by defendant from a judg. which caused the injuries, were so engaged.

cedent was injured, including the cars ment of the Court of Common Pleas Even counsel for appellee concede that there for Washington County in plaintiff's favor in an action brought to recover damages, ing upon these material questions. No at

was no direct or positive testimony bearunder the Federal employers' liability act, tempt was made to prove what the general for the alleged wrongful death of plain- duties of decedent were, or what duties tiff's husband. Reversed.

were included within the scope of his emThe facts appear in the opinion.

that he was

ployment, and the fact Messrs. R. W. Irwin, Rufus S. Mar- brakeman only appears as an incident of riner, and James A. Wiley for appellant. the trial, without explanation as to the

Messrs. W. Clyde Grubbs, Edwin T. character of his general duties, or that he Levengood, and Alexander M. Temple- had anything to do in connection with inton for appellee.

terstate shipments. At the close of the Elkin, J., delivered the opinion of the trial the only substantive fact proved tend

ing to show in any way decedent to have court: This is an action of trespass to recover

been engaged even remotely in interstate damages for personal injuries resulting in

was that in the freight yard the death of plaintiff's husband, who was

where he was employed cars containing employed as a brakeman in a general both intra and interstate shipments were refreight yard of defendant railroad company, ceived, stored, shifted, and reloaded for located in the city of Pittsburgh. The transportation from time to time. So far suit was brought under two acts of Con- as the evidence discloses there is no greater gress—the employers' liability act of April presumption that the empty cars being 22, 1908, and the safety appliance act of shifted at the time of the accident were in

Note. The constitutionality, applica-gaged in switching cars and making up tion, and effect of the Federal employers' trains, see page 54 of the earlier note, and liability act form the subject of extended page 61 of the later note. Generally as to notes in 47 L.R.A. (N.S.) 38, and L.R.A. the burden of proof as to the applicability 1915C, 47. For the specific question as to of the Federal employers' liability act, see the applicability of the act to employees en- page 64 of the later note.

a

commerce

.

tended for use in interstate commerce than | asking for the records in question, but was that they were to contain intrastate ship- informed that no record of empty cars was ments. The evidence is silent as to the char-kept. This witness testified that reports acter of freight with which these cars were of loaded cars were kept, but not of empty loaded when they arrived in the freight cars handled in the yard. The evidence yard, what disposition had been made of was straightforward and was not disputed. the cars after their arrival, and what kind | This stands as an established fact by a of shipments, if any, they contained when witness produced by plaintiff, and not chalthey left the yard. All of these important lenged by anyone. The witness could not facts are left to conjecture.

produce what he did not have, and how can Can it be said under these circumstances it be said that he suppressed a record which that the plaintiff made out a case under never existed? There were two loaded cars the acts of Congress? It is argued that in the draft of twenty-two cars; but counwhere there is no direct or positive evidence sel for plaintiff asked no questions about the of the negligence charged, or of the facts loaded cars, and, indeed, these cars had required to make the acts of Congress ap- nothing to do with the injury of decedent. plicable, the circumstances may be such as Council did ask the witness Hickey for the to warrant the necessary inference to be number of the car which caused the injury, drawn by the jury. This is stating the rule and was informed that it was “Hopper, more broadly than the cases relied on war- 682,970." No further inquiry was made rant. It is true that the facts proved at about this car, nor about the other five the trial may warrant a presumption of cars in the draft being shifted at the time negligence, and there are exceptional cases decedent was injured. The numbers of in which it has been so held. But even in these cars could have been obtained, their such cases it is for the court to say whether movements could have been traced, and the the facts proved are sufficient to raise the kind of shipments they contained when presumption relied on. 38 Cyc. 1519; | loaded and made up into trains could have Stoever v. Whitman, 6 Binn. 416. In the been ascertained by proper inquiry; but no case at bar the facts proved do not show such questions were asked, and no attempt what kind of commerce decedent was en- was made to elicit this information, or to gaged in at the time of the accident. The establish these material facts. We disempty cars may have been intended for in- cover no attempt to suppress evidence in terstate shipments,

for

intrastate. this record, nor is there anything to indiThere is no more presumption one way than | cate that the witness Allen did not tell the the other. The presumptions in this re-exact truth when he testified that no record spect are equal, if, indeed, it can be said of empty cars was kept while they were.lythere is any presumption under such cir. ing in the freight yard awaiting consigncumstances. Again, it is worthy of notice ment in regular trains, or were being that the cars being shifted were empties shifted for this purpose. Under this state and did not contain any kind of commerce, of facts, it is our opinion that the rule of and there is no evidence to show from spoliation, upon which the contention of apwhence they came nor whither they were pellee is based, has no application. going, what kind of shipments they carried As we view this case, the burden was on into the freight yard, or what character of plaintiff to prove facts to show that her commerce they were engaged in when they husband was engaged in interstate comleft it.

merce, or had to do with the instrumentaliIt is further contended for appellee that ties of such commerce, at the time he rethe failure to produce the records of the ceived his injuries, and as to these essential draft of cars in question when subpænaed facts the proofs fail to make out a prima to do so amounts to a suppression of evi- facie case. It is difficult to lay down a dence on the part of appellant, and raises definite rule marking the division lines bea presumption that decedent was engaged tween intra and interstate commerce in this in interstate commerce. The difficulty with class of cases, so as to be able to determine this argument is that the facts do not sus- with precision and exactness in each case tain it. The witness Allen was subpænaed as it arises whether the injured employee to produce the records of the conductor, was or was not engaged in interstate comHickey, showing the cars he moved in the merce within the meaning of the acts of freight yard on the night of the accident. Congress. Much depends upon the facts of The witness appeared and testified, and each particular case, and hence the necesthere is nothing in his testimony to indi. sity of proving the essential facts relied on cate a suppression of evidence. He said he tu show that the injured party was engaged had no such records, and that as soon as in interstate commerce, or had to do with the subpæna was served he wired the Phila- its instrumentalities when he was injured. delphia office, where all records were kept, 'How liberally the acts of Congress shall be

or

construed, and to what extend they may be ulation and authority in matters relating widened and broadened in their enforcement, to the personal injuries of railroad emso as to include injured persons only re- ployees. The cases have not gone so far, motely or incidentally engaged in interstate and we do not see how the rule can be laid commerce, and without reference to their down so broadly without doing violence to primary and principal duties, is not for the plain language of the commerce clause this court to finally determine. To hold the of the Constitution which limits the Fedscales evenly balanced, so as not to unduly eral power to interstate subjects. limit the powers of Congress on one hand, Our view is that in cases like the one at nor yet encroach upon the proper exercise bar commerce must be regarded as of two of state jurisdiction on the other, is not an kinds, intra and interstate; and the status easy task for any court. But there must of the employees must be determined by the be a division line at some point in each case, kind of commerce they are engaged in at and the facts must be the guide to deter- the time the injuries were sustained. If mine where that line shall be drawn. they were engaged in interstate commerce,

We are not unmindful of the recent deci. the acts of Congress apply; if they were sions of the Supreme Court of the United engaged in intrastate commerce, the FedStates in which this question has been eral statutes have no application. All of broadly considered. These cases construe this depends upon the facts, and in order the Federal statutes most liberally, and will to make out a case under the acts of Conhave the effect of extending their applica- gress plaintiff must prove that the injured tion in many directions. Such are Southern person was engaged in interstate commerce R. Co. v. United States, 222 U. S. 20, 56 L. at the time of the accident. In the present ed. 72, 32 Sup. Ct. Rep. 2; Second Employ- case this burden was not borne. ers' Liability Cases (Moudou v. New York, This position is sustained by a historiN. H. & H. R. Co.) 223 U. S. 1, 56 L. ed. cal view of the decisions and legislation 327, 38 L.R.A.(N.S.) 44, 23 Sup. Ct. Rep. relating to this subject. The employers' 169, 1 N. C. C. A. 875; Pedersen v. Dela- liability act of Congress of June 11, 1906 ware, L. & W. R. Co. 229 U. S. 146, 57 L. (34 Stat. at L. 232, chap. 3073, Comp. ed. 1125, 33 Sup. Ct. Rep. 648, Ann. Cas. Stat. 1913, § 3913), was declared uncon1914C, 153, 3 N. C. C. A. 779, and other stitutional by the Supreme Court of the cases of like import. We must assume, United States, because it included subjects however, that it was not the intention of wholly outside the power of Congress unthese decisions to construe the acts of Con- der the commerce clause of the Constitugress so as to make them cover injuries sus- tion,--that is, subjects relating to intratained by an employee engaged in intrastate state

Employers' Liability commerce at the time he was injured. Cer-Cases (Howard v. Illinois C. R. Co.) 207 U. tainly the acts of Congress could not apply S. 463, 52 L. ed. 297, 28 Sup. Ct. Rep. 141. to a railroad, or its employees, engaged ex. Following that decision Congress passed the clusively in intrastate commerce, and not act of 1908, which in plain language limited having any business of an interstate char. its application to interstate commerce and acter. But no such situation is likely to to "any person suffering injury while he arise, because nearly every railroad in this is employed by such carrier in such comcountry, and perhaps every one, engages to merce.” The evident purpose of this act some extent in interstate commerce, either was to limit its application to interstate by shipments to points outside the state or subjects and to correct what the Supreme by receiving cars or freight from points be Court of the United States had pointed out yond state lines. If the mere fact that a as a fatal defect in the act of 1906. Keeprailroad may be used at times, frequently or ing in mind the plain language of the act otherwise, for interstate commerce transpor- of 1908, and the sequence of events which tation, fixes the status of all its employees led to its enactment, how can it be successas being engaged in interstate commerce fully contended that it may be so enlarged within the meaning of the acts of Congress, and extended as to include injuries to all without reference to the duties they were / kinds of employees engaged in all kinds of performing at the time of the injury, it commerce, and that it is not to be restricted would follow that all such employees, no to interstate commerce and to persons en: matter how incidentally or remotely their gaged therein ? duties had to do with interstate commerce There is some question as to the evidence generally, or what kind of commerce they being sufficient to sustain a charge of neg. were engaged in when injured, would come ligence under the acts of Congress even if within the purview of the Federal statutes it appeared that decedent was engaged in when they brought an action to recover interstate commerce at the time. It is a damages for personal injuries. To so hold close question, to say the least; but it is of would mean the wiping out of all state reg. no special importance, in the view we have

commerce.

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taken of the case, that there was no proof have been caused by defendant's negligence. to show decedent to have been engaged in Reversed. interstate commerce. Having failed to es- The facts are stated in the opinion. tablish this essential fact, the case falls. Messrs. John G. Frazer and Reed,

This case has now been heard and care. Smith, Shaw, & Beal, for appellant: fully considered by all the members of this The company was not bound to foresee court, with the result that there is entire the happening of the accident from the fact agreement upon the conclusion reached. In that it maintained a defectively insulated other words, we all agree that the evidence wire at the location of the one in question, was insufficient to make out a case show- and the death of Geroski was the result of ing that decedent was engaged in inter- his own independent act, which defendant state commerce when injured.

could not reasonably have anticipated, and Judgment reversed, and is here entered against which there was no duty to infor defendant upon the whole record. sulate its wires.

Trout v. Philadelphia Electric Co. 236 Pa. 506, 42 L.R.A.(N.S.) 713, 84 Atl. 967; O'Gara v. Philadelphia Electric Co. 244 Pa.

156, 90 Atl. 529; Green v. West Penn R. PENNSYLVANIA SUPREME COURT.

Co. 246 Pa. 340, L.R.A.19150, 151, 92 MARY GEROSKI

Atl. 341; Brush Electric Light & P. Co.

v. Lefevre, 93 Tex. 604, 49 L.R.A. 771, 77 ALLEGHENY COUNTY LIGHT COM

Am. St. Rep. 898, 57 S. W. 640; New Omaha PANY, Appt.

Thomson-Houston Electric Light Co. v. An

derson, 73 Neb. 84, 102 N. W. 89, 17 Am. (247 Pa. 304, 93 Atl. 338.)

Neg. Rep. 601; Stark v. Muskegon Trac

tion & Lighting Co. 141 Mich. 575, 1 L.R.A. Electricity death duty to anticipate (N.S.) 822, 104 N. W. 1100; Sullivan v. accident.

Boston & A. R. Co. 156 Mass. 378, 31 N. E. One maintaining heavily charged wires in 128; Sias v. Lovell, L. & H. Street. R. Co. a city street, 29 feet from the ground and 179 Mass. 343, 60 N. E. 974; Keefe v. Nar12 feet from the adjoining building, is not ragansett Electric Lighting Co. 21 R. I. liable for the death of the janitor of the 575, 43 Atl. 542, 4 Am. Neg. Rep. 218; building, who, in attempting, while on the Newark Electric Light & P. Co. v. McGilground, to substitute a wire for a rope on a Hagstaff on the building, walks toward the very, 62 N. J. L. 451, 41 Atl. 955, 5 Am. street far enough to bring the wire in con

Neg. Rep. 187. tact with the current, thereby causing his

Messrs. Robertson & Link and A. E. death, since there is no duty to anticipate Goss, for appellee: such an accident.

While an owner of a dangerous wire may

not be bound to anticipate in detail the (January 2, 1915.)

particular state of facts constituting this

case, the owner is bound to anticipate any PPEAL by defendant from a judgment contact that may occur at places where A

of the Court of Common Pleas for Al- others have the right to go for work, busilegheny County in plaintiff's favor in an ac- ness, or pleasure. tion brought to recover damages for the 1 Joyce, Electric Law, § 445; Morgan v. death of her husband, which was alleged to 'Westmoreland Electric Co. 213 Pa. 151, 62

Note. - Generally for anticipation as an | Light, Heat & P. Co. 43 L.R.A.(N.S.) 137. element of proximate cause, see note to And see later cases, Harris v. Eastern WisKreigh v. Westinghouse, C. K. & Co. 11 consin R. & Light Co. 45 L.R.A. (N.S.) 1058; L.R.A. (N.S.) 684. And see later cases in Green v. West Penn R. Co. L.R.A.1915C, this series: Morey y. Lake Superior Ter- 151; and Kempf v. Spokane & I. E. R. Co. minal & Transfer R. Co. 12 L.R.A.(N.S.) L.R.A.1915C, 405. 221; Winegarner v. Edison Light & P. Co. Generally as to duty to prevent contact 28 L.R.A. (N.S.) 677 (duty to anticipate of wires carrying electric current, see note possible injury to person upon house being to Paducah Light & P. Co. v. Parkman, 52 moved in street from contact with electric L.R.A.(N.S.) 587. wire); Allison v. Fredericksburg, 48 L.R.A. Many other phases of the liability for in. (N.S.) 93; Hubbard y. Bartholomew, 49 jury from contact with electric wires are L.R.A.(N.S.) 443.

treated in notes which may be found by conThe duty in stringing electric wires to sulting the Index to L.R.A. Notes, under guard against danger to children is covered the title “Electricity.” The title “Proximate in note to Temple v. McComb City Electric Cause” may also be profitably consulted for Light & P. Co. 11 L.R.A.(N.S.) 449; Weth- annotation on various concrete phases of erby v. Twin State Gas & Electric Co. 25 that subject. L.R.A. (N.S.) 1220; and Meyer v. Union

Atl. 638, 19 Am. Neg. Rep. 504; Telephone, dict for plaintiff, and from the judgment
Co. v. Varnau, 5 Lanc. L. Rev. 401; Dev. entered thereon, defendant has appealed.
lin v. Beacon Light Co. 192 Pa. 188, 43 The first assignment of error is to the re-
Atl. 962; Dillon v. Allegheny County Light fusal of the trial judge to give binding in-
Co. 179 Pa. 482, 36 Atl. 164, 1 Am. Neg. structions in favor of the defendant, and
Rep. 174; Griesemer v. Suburban Electric the second assignment is to his refusal to
Co. 224 Pa. 328, 73 Atl. 340; Fitzgerald v. enter judgment for defendant non obstante
Edison Electric Illuminating Co. 200 Pa. veredicto. It was admitted that the electric
540, 86 Am. St. Rep. 732, 50 Atl. 161; wires were part of a so-called high-tension
Mullen v. Wilkes-Barre Gas & Electric Co. power line, carrying 10,000 volts. The evi-
229 Pa. 54, 77 Atl. 1108; Alexander v. dence offered upon the part of plaintiff
Nanticoke Light Co. 209 Pa. 571, 67 L.R.A. tended to show that the insulation on the
475, 58 Atl. 1068, 17 Am. Neg. Rep. 354; electric wires was worn off to a slight ex-
Cramer v. Aluminum Co. 239 Pa. 120, 86 tent in a few places, but there was nothing
Atl. 654; Illingsworth v. Boston Electric to indicate that the wires were in any way
Light Co. 161 Mass. 583, 25 L.R.A. 552, 37 out of repair. The testimony of the wit-
N. E. 778.

nesses who had any knowledge of electricity

tended to show that Geroski did not rePotter, J., delivered the opinion of the ceive anything like the full force of the curcourt:

rent, or such as he would have received had Mary Geroski brought this action of treg. the wire in his hand come in direct contact pass against the Allegheny County Light with an uninsulated part of the overhead Company, to recover damages for the death electric wire. The testimony of these witof her husband, John Geroski, which she al. nesses, who had expert knowledge of the leges was due to the negligence of defend subject, and of the conditions which existed ant. Geroski was coal miner and lived at the time, tended to show that the shock at Glendale, Allegheny county. He was which Geroski received came from the fact also the janitor of the Polish Falcon Hall, that the wire in his hand was brought by at that place. The hall fronts on a public him into close proximity to the overhead street, and upon the roof of the front por- highly charged electric wire, but not into tion of the hall there is a flagpole. The actual contact with it. In the judgment wires of the defendant company are strung of these witnesses, the injury was caused by upon poles along the side of the street in the leakage of static electricity from the front of the hall, at a distance of 12 or 13 overhead wire, which, when the small wire feet from the building, and at a height of was brought near to it, entered it by inducabout 29 feet from the ground. The flag- tion. It was further pointed out that, in pole extends some 8 or 10 feet higher than case of direct contact between the wires, the the wires. There is a narrow board walk burns received by Geroski would have been in front of the hall, and defendant's poles much more severe, and death would have are placed between it and the roadway. On been instantaneous. It matters not, howMay 28, 1910, Geroski was about to raise ever, whether the injury resulted from dithe flag on the pole. A rope had previously rect contact with the overhead wire, or been used for that purpose, but at that time from leakage therefrom which entered the Geroski attempted to remove the rope and small wire held by Geroski, when it was replaced it with a piece of copper-plated brought by him into close proximity to the wire. He attached an end of the wire to overhead wire. For in any event it is apthe rope, and began to pull it up. When the parent from the testimony in this case that, wire reached the top of the pole, it became with such high-tension wires as these, carryentangled in some way, and in trying to ing so heavy a voltage, mere insulation loosen it, Geroski stepped backwards from alone could not be depended upon to insure the porch of the hall, where he had been safety to the public. In any such case due standing, to the board walk, and then into precaution would require that the wires the roadway, pulling and shaking the wire should be so placed that there would be no

likelihood or reasonable probability of huand rope. While so engaged, the small wire

man contact therewith. If, therefore, under evidently came in contact with or in close the circumstances, the defendant company proximity to, the overhead electric wire, ought to have reasonably anticipated that and Geroski received an electric shock which

anyone, in the proper exercise of business caused his death. It was alleged on the or pleasure, would come in contact with part of plaintiff that defendant's overhead its overhead wires at the location in which wire, which was charged with a powerful they were placed, it would properly be liable current of electricity, was not properly in- in damages for such injuries as were the sulated, and was not in good repair. The proximate result of such location, unless trial in the court below resulted in a ver. 'the injured person was guilty of negligence

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