Opinion
No. 4779.
March 16, 1933.
Appeal from the District Court of the United States for the Northern District of Indiana, Fort Wayne Division; Thomas W. Slick, Judge.
Action by James B. Moore against the Chesapeake Ohio Railway Company. From judgment for plaintiff, defendant appeals.
Reversed, and remanded with instructions.
Appellee brought this action in the Federal District Court for Northern Indiana, to recover damages for personal injuries resulting to him while in the employ of appellant as a yard switchman at Russell, Kentucky.
The complaint is in two paragraphs and in each recovery is sought for the same injury, which it is alleged was caused by a defective coupler while appellee was attempting to uncouple a freight car in the performance of his duties as switchman. Each paragraph alleges that appellant, at all times mentioned in the complaint, was and now is a corporation organized under and by virtue of the laws of Virginia, and at all said times was engaged in operating a steam railroad as a common carrier engaging in interstate commerce in and between and through Virginia, West Virginia, Ohio, Indiana, and Illinois, and was doing business in the Northern Federal District of Indiana.
The descriptions of the coupler and its appurtenances and the manner in which the injury happened are the same in each paragraph; that is to say, it is alleged that the uncoupling lever was known as a push-down type and was designed to be operated by a lever extending from the coupler to the outside line of the car, by means of which, when in good order, it was unnecessary for the switchman to step between the cars to operate it; that the normal, ordinary, and usual manner of uncoupling a car was to place one hand on the outward end of the lever and push it down, and this would normally pull up the lock block or coupling pin, thereby releasing the coupler knuckles and disengaging the couplers; that while the cars were in motion appellee, in the manner just described, attempted to uncouple a car, but when he pushed down on the lever it dropped more than fifteen inches, and descended inwardly toward the wheel of the car to a point less than eighteen inches from the top of the rail without releasing the knuckles or disengaging the couplers, which result was due to the lever and its parts and appurtenances being bent, twisted, and in a defective condition at the time appellee attempted to uncouple the car. It is further alleged that the descent of the lever handle to less than eighteen inches above the top of the rail caused appellee's body to become unbalanced and to be thrown forward between the ends of the cars, and his right arm to become engaged with the wheel of the car, and as a result thereof it was necessary to amputate a part of the arm.
The wrong with which appellee seeks to charge appellant in each paragraph is that appellant unlawfully and negligently used and permitted to be used on its railroad a car (1) equipped with a push-down type of uncoupling lever, the handle of which lever when operated in the normal way descended to a point less than eighteen inches from or above the top of the rail without causing or engaging the lock block or pin to release the knuckle; (2) equipped with a push-down type of uncoupling lever, the handle of which when operated in the normal way dropped more than fifteen inches over all; (3) whose uncoupling lever, its parts and appurtenances, were bent, twisted, and defective in condition and placement, and which interfered with and prevented the lock block or pin from releasing the knuckle of the coupler and prevented an uncoupling of the cars in the normal way; (4) whose uncoupling lever, its parts and appurtenances were bent, twisted, and defective in condition and placement, and which prevented the coupler from being uncoupled without the necessity of a man going between the ends of the cars in order to effect said uncoupling; (5) the coupler of which, when coupled to another car, could not be uncoupled in the normal way without the necessity of a man going between the ends of the cars to effect said uncoupling; (6) not equipped with couplers coupling automatically by impact and which could be uncoupled without the necessity of a man going between the ends of the cars.
The first paragraph alleges that at the time of the injury appellee was engaged with appellant in interstate commerce. It also alleged therein: "That plaintiff brings this action against the defendant under and by virtue of an Act of Congress of the United States, approved April 22, 1908, and Amendments thereto, and which Act is commonly known as the Federal Employers' Liability Act, and under a certain Act of the Congress of the United States known as the Safety Appliance Acts and the Rules and Orders lawfully promulgated thereunder by the United States Interstate Commerce Commission; that said laws of the United States and Rules and Orders aforesaid were in full force and effect at all times * * * mentioned; that said laws of the United States give to this Court jurisdiction to hear and determine this cause of action."
The second paragraph, in addition to those allegations which are hereinbefore referred to as being in both paragraphs, also alleges that appellee is a citizen of Indiana and a resident of the Northern Federal District of that state, and that the amount in controversy exceeds $3,000 exclusive of costs and interest. It is further alleged that at the time of the injury appellee was engaged with appellant in intrastate commerce. It was also alleged: "That plaintiff brings this action against the defendant under and by virtue of an Act of the Congress of the United States commonly known as the Safety Appliance Acts and the Rules and Orders promulgated by the Interstate Commerce Commission of the United States, and also under the laws of the State of Kentucky * * *," which laws of Kentucky are therein set forth.
"§ 820b-1. * * * That every common carrier by railroad while engaged in commerce in this state shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or in case of the death of such employee, to his or her personal representative for such injury or death to such employee resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence in its cars, engines, appliances, machinery, track, roadbed, docks, boats, wharves or other equipment.
"§ 820b-2. * * * In all actions hereafter brought against such common carrier by railroad, or by virtue of any of the provisions of this act to recover damages for personal injury to any employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee; provided, that no such employee who may have been injured or killed shall be held to have been guilty of contributory negligence in any case where the violation of such common carrier of any statute, state or federal, enacted for the safety of employees contributed to the injury or death of such employee.
"§ 820b-3. * * * That in any action brought against any common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any employee, such employee shall not be held to have assumed the risk of his employment in any case where the violation by such common carrier of any statute, state or federal, enacted for the safety of employee, contributed to the injury or death of such employee."
Appellant appeared specially and filed in two paragraphs a plea in abatement to the jurisdiction of the court. The first paragraph was directed to the first paragraph of complaint. It denied that appellee was engaged in interstate commerce at the time of the injury, and alleged that appellant was an inhabitant of the Eastern District of Virginia, and that, so far as jurisdiction might depend on the fact that the suit arose under the Federal Safety Appliance Act ( 45 USCA § 1 et seq.), the cause of action could not be brought in any other district than that whereof appellant was an inhabitant.
The second paragraph of the plea in abatement was directed to the second paragraph of complaint, and challenged the jurisdiction of the court over the cause of action and over the person of the appellant. It alleged that appellee was not a resident of the Northern District of Indiana, and that appellant was an inhabitant of the Eastern District of Virginia, and that the action, arising under the Federal Safety Appliance Acts, could not be brought against appellant by any original process or proceeding in any other district than the Eastern District of Virginia.
The court sustained appellee's demurrer to the first paragraph of the plea in abatement. A preliminary hearing was had before the court on the second paragraph of the plea and it was overruled.
The cause was submitted to the court for trial before a jury. The court instructed the jury that the first paragraph of complaint was based upon a violation of the Federal Safety Appliance Act, and that the second paragraph was based upon the statutes of Kentucky. A general verdict was rendered for appellee for $30,000, which, so far as the record discloses, was upon both paragraphs, and judgment was rendered for appellee in that sum.
Albert H. Cole, of Peru, Ind., for appellant.
Chester L. Teeter and Lloyd Hartzler, both of Fort Wayne, Ind., for appellee.
Before EVANS and SPARKS, Circuit Judges, and WILKERSON, District Judge.
The first question presented for our consideration is one of jurisdiction. The first paragraph of complaint does not allege diversity of citizenship, but it alleges that the action is brought under and by virtue of an Act of Congress, approved April 22, 1908, which is known as the Federal Employers' Liability Act, §§ 1, 3, and 4, c. 149, 35 Stat. 65, 66; 45 USCA §§ 51, 53, and 54; and also section 6 of that act as amended April 5, 1910, § 1, c. 143, 36 Stats. 291, 45 USCA § 56.
Federal Employers' Liability Act.
45 USCA § 51. "Every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."
45 USCA § 53. "In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, * * * the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. * * *"
45 USCA § 54. "In any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to * * * any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee."
45 USCA § 56. * * * Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. * * *"
It is also alleged that the first paragraph is brought under and by virtue of an Act of Congress (approved March 2, 1893) known as the Federal Safety Appliance Act (sections 2 and 8, c. 196, 27 Stats. 531 and 532 [45 USCA §§ 2 and 7]; and section 1, c. 976, 32 Stat. 943 [45 USCA § 8]), and the orders promulgated thereunder by the Interstate Commerce Commission (Order of March 13, 1911, Roberts' Federal Liabilities of Carriers, Vol. 2, pp. 2010, 2016).
Safety Appliance Act.
45 USCA § 2. "It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars."
45 USCA § 7. "Any employee of any common carrier engaged in interstate commerce by railroad who may be injured by any locomotive, car, or train in use contrary to the provision of this chapter shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge."
45 USCA § 8. "* * * and the provisions and requirements relating to * * * automatic couplers * * * shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, * * * and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith * * *."
"Handles of uncoupling-levers of the `rocking' or `push-down' type shall be not less than eighteen (18) inches from top of rail when lock-block has released knuckle, and a suitable stop shall be provided to prevent inside arm from flying up in case of breakage. Location: One (1) on each end of car. When single lever is used it shall be placed on left side of end of car." (Roberts' Federal Liabilities of Carriers, Append. 2, Vol. 2, pages 2010, 2016).
It will be observed that the Employers' Liability Act deals exclusively with acts of negligence, while the Safety Appliance Act is not based upon negligence of the employer, but it imposes a duty upon the employer with relation to car couplers, the violation of which duty renders the employer liable to the employee for proximate damages arising therefrom, regardless of employer's negligence.
The jurisdiction and venue of causes of action brought under the Safety Appliance Act are governed by section 51 of the Judicial Code, 28 USCA § 112, and in so far as it applies to this action is as follows: "* * * No civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant."
Diversity of citizenship not having been pleaded in the first paragraph, the cause of action therein stated, in so far as it relies upon a violation of the Safety Appliance Act as a basis, must be brought in the district of appellant's residence. McCormick Harvesting Machine Co. v. Walthers, 134 U.S. 41, 10 S. Ct. 485, 33 L. Ed. 833; In re Keasbey Mattison Co., 160 U.S. 221, 16 S. Ct. 273, 40 L. Ed. 402; Whittaker v. Illinois Central R. Co. (C.C.) 176 F. 130; Steidle v. Reading Co. (C.C.A.) 24 F.2d 299.
Appellee, however, relies on amended section 6 of the Employers' Liability Act, 45 US CA § 56 (supra) to sustain the trial court's jurisdiction, which provides that actions under that Act may, in plaintiff's discretion, be brought in a District Court of the United States in the district of defendant's residence, or in which the defendant shall be doing business, or in which the cause of action arose.
It was the duty of the trial court to determine the theory of the complaint. It did so, and instructed the jury that the first paragraph was based upon the Safety Appliance Act, and we think the court was right in this respect. Appellee alleged in this paragraph that the cause of action was brought under and by virtue of both acts, and also under the rules promulgated by the Interstate Commerce Commission under the Safety Appliance Act.
Regardless of what might have been the opinion of the court as to the theory of this paragraph when it overruled the plea in abatement, if indeed at that time it could have definitely determined the theory, its instruction to the jury in this respect was abundantly justified by the evidence, and was in no wise contrary to it; for every wrongful act complained of and supported by evidence, if true, constituted a violation of the Safety Appliance Act or the rules of the Interstate Commerce Commission promulgated thereunder.
In support of its contention in this respect, appellee relies upon San Antonio Aransas Pass Ry. Co. v. Wagner, 241 U.S. 476, 36 S. Ct. 626, 630, 60 L. Ed. 1110. The cause of action therein stated was based upon the Employers' Liability Act, and the evidence showed a failure to comply with the Safety Appliance Act with respect to a car coupler. It was there argued that in actions based upon the Employers' Liability Act the defendant could not be held liable without evidence of negligence. The court held that that Act and the Safety Appliance Act "are in pari materia, and where the Employers' Liability Act refers to `any defect or insufficiency, due to its negligence, in its cars, engines, appliances,' etc., it clearly is the legislative intent to treat a violation of the Safety Appliance Act as `negligence' — what is sometimes called negligence per se." That case originated in the State of Texas and came to the Supreme Court of the United States by writ of error to the Supreme Court of that state ([Tex. Civ. App.] 166 S.W. 24). No question of venue or jurisdiction was raised, and we find in that opinion nothing inconsistent with our ruling in this case.
The second paragraph of complaint alleges diversity of citizenship, but does not allege that it is based on the Employers' Liability Act. It alleges that it is brought under and by virtue of the Federal Safety Appliance Acts and the rules of the Interstate Commerce Commission promulgated thereunder, and also under and by virtue of the statutes of Kentucky. Notwithstanding those allegations appellee now contends that this paragraph should not and cannot be construed to have been founded on the Safety Appliance Act, and that his reference to it in this paragraph was only "to supply the negligence, with certainty, required by the Kentucky Employers' Liability Act."
Assuming that the second paragraph is based exclusively upon the Kentucky Statutes, it then becomes quite clear that those statutes and the Safety Appliance Act cannot be considered pari materia, because the requirements of the latter act and the orders promulgated thereunder by the United States Interstate Commerce Commission, apply only to interstate commerce, while the second paragraph alleges that at the time of the injury both parties were engaged in intrastate commerce. If under this paragraph, as suggested by appellee, he be permitted thus "to supply the negligence, with certainty, as required by the Kentucky Employers' Liability Act," this court would be thereby placed in the anomalous position of extending the benefits of the Safety Appliance Act to intrastate commerce.
We are convinced that appellee in his second paragraph attempted to state a cause of action under the Federal Safety Appliance Act as well as under the Statutes of Kentucky, and he alleged facts therein which, if true, constituted a ground for Federal jurisdiction other than diversity of citizenship. Indeed, the court instructed the jury that appellee could not recover unless violation of the Federal Safety Appliance Act had been proven. That being the case, jurisdiction and venue were in the district of appellant's residence and not in the Northern District of Indiana.
The judgment is reversed and the cause remanded with instructions to grant appellee permission to amend his first paragraph of complaint, if he so desires, to conform exclusively to the theory that the acts complained of constitute a violation of the Federal Employers' Liability Act, and to amend his second paragraph of complaint, if he so desires, to conform exclusively to the theory that the acts complained of constitute a violation of the Employers' Liability Act of the State of Kentucky, and for further proceedings not inconsistent with this opinion.