# Petition for Writ of Certiorari — Washington R. & Elec. Co. v. Scala

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1917
- **Citation:** 244 U.S. 630

## Text

- ANN CATHERINE ‘SCALA, ADMINISTRATRIX
_ OF THE ESTATE OF ALVIN. JOSEPH SCALA,
DECEASED, RESPONDENT.

WASHINGTON RAILWAY AND
ELECTRIC COMPANY, —_—™
- By Counsel.

Attorney for Pelitioner.

IN THE

Supreme Court of the United States,

WASHINGTON RAILWAY AND ELECTRIC COM-
PANY, PETITIONER,

Us.

ANN CATHERINE SCALA, ADMINISTRATRIX
OF THE ESTATE OF ALVIN JOSEPH SCALA,
DECEASED, RESPONDENT.

Petition for Writ of Certiorari.

To the Honorable Judges of the Supreme Court of the
United Slates:

Your Petitioner, the Washington Railway and Electrie

Company, respectfully prays that a writ of certiorari

a issue to the Court of Appeals of the Distriet of Columbia,
a to review a certain final judgment of the said court
J rendered on the 4th day of December, 1916, on a certain

appeal prosecuted by your Petitioner from a final judg-
ment of the Supreme Court of the Distriet of Columbia
in a certain action at law, wherein your Petitioner was
the defendant and the Respondent was the plaintiff,
and in which a judgment for 87,500 had been rendered
against your Petitioner and in favor of the Respondent.
| In the Court of Appeals your Petitioner was appellant
and the Respondent was appellee.

The action arose under the Federal /mployers’ Lia-
bility Act of April 22, 1908 (35 Stats. L., 65). The

7636—1

aa tneiad

2

Respondent’s decedent while a conductor in the employ
of your Petitioner was in charge of a trolley car operat-
ing between the city of Washington, in the District of
Columbia, and Glen Echo Park, in the County of Mont-
gomery, State of Maryland, and was killed by his
coming in contact with a trolley pole alleged to have
been negligently left in dangerous proximity to the
track and the car of your Petitioner thereon. The acci-
dent occurred on July 18, 1913. The decedent survived
the injury but thirty minutes, and died without having
regained consciousness. The action was instituted on
the 27th day of January, 1914. The declaration as
originally filed made no claim for conscious pain and
suffering on the part of the decedent, and only claimed
pecuniary damages resulting to the next of kin for
whose benefit it was instituted. In October, 1915, more
than two years after the accident, and during the progress
of the trial, the declaration was amended so as to
allege and seek a recovery for conscious pain and suffer-
ing. The defenses were:

(1) That the defendant, a street car eom-
pany purely, not engaged in the transportation
of freight of any kind, was not a “common carrier
by railroad” within the meaning of the Federal
IXmployers’ Liability Law of 190s;

(2) The entire absence of any negligence on
its part;

(3) That the death of the decedent was caused
by his sole negligence;

(4) That it wasthe result of an aecident, to wit:
his losing his footing while passing along the

runningboard;
(5) That the risk of such injury was assumed;
(6) That as to the conscious pain and suffering.
(a) That the evidence did not show that he
had undergone conscious pain and uffering:
(b) That the statute of limitations barred
such a claim before the declaration assert-
ing it was amended.

3

The evidence showed without contradiction that the
condition complained of was a permanent and obvious
one; that the decedent had been in the employ of the
defendant for over twelve months, and had been over
‘this route repeatedly and in excess of 150 times within a
month or two of his death; that the proximity of the pole
did not cause him to fall, but that he lost his footing on
the runningboard of the open summer car before reach-
ing the pole, which caused his body to swing far beyond
the outside of the car, thus causing his body to strike
the pole and throw him from the car.

The Court refused to direct the jury to return a verdict
on the ground of assumption of risk or that defendant
was not a common earrier by railroad, and refused
prayers submitting those questions to the jury: granted
prayers allowing recovery for conscious pain and suffer-
ing of decedent, as well as pecuniary loss to the bene-
ficiaries, and directed the Jury as matter of law that if
the pole was dangerously near the track the plaintiff
was entitled to a recovery. The jury returned a verdict
for the plaintiff for $7,500 in solido, though the deeedent
was but 19 years of age and was earning gross but S60
per month.

It will be seen that this case necessarily involved the
construction of the first, third and fourth seetions of
the Federal Employers’ Liability Aet of 1908, and see-
tions six and nine of the Amendatory Aet of 1910.

It is the confident contention of your Petitioner that
the Employers’ Liability Law of 1908 is a general statute
and that the Petitioner is entitled as of right to a writ of
error bringing this case to this eourt for review. An
application for such a writ was duly made to the Court of
Appeals of the Distriet of Columbia and was granted
by that Court, and the ease is now on the docket of this
Court in accordance therewith. Counsel for the Re-
spondent, however, appeared in the Court of Appeals

FARE FRR as SERN TIES ENE ORT E ERE beh eit RIERA A SP

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of the District of Columbia after the said writ of error
had been granted and filed a suggestion for the revoca-
tion of the order allowing the writ, upon the ground that
though it appeared from the evidence in the case that
the decedent was engaged on an interstate trip at the
time of his injury, yet at the instant of the Injury he was
within the territorial limits of the District of Columbia
and that therefore the right of action accrued under Sec-
tion 2 of the Act independent of Section 1, and that
therefore the writ of error did not lay because ‘when the
injury involved oceurs within the territorial limits of
the Distriet of Columbia under Section 2 of the Act of
1908,” the construction of a local law applying to the
District of Columbia alone is involved, and not a
“general law of the United States within the meaning
of the 6th clause of the Judicial Code.”

This view of the law is deemed uwateanble by your
Petitioner as will be hereafter indicated, aud this Petition
is merely presented out of an abundance of caution.
Assuming, however, for the purposes of this Petition,
that the statute as applicable to the facts stated in the
declaration and shown in evidence is a local law “within
the meaning of the 6th clause of the Judicial Code.” i
is urged that a writ of certiorari should be granted ta
the instant ense, (1) beeause it tnvolves aot only the con-
struction of Section L of the Aet of April 22, 1908, but
Section 2 as well: to wit, whether or not a street rail
way company such as the defendant is shown to be, is a

“common earrier by railroad” withia the meaning of the
Aet of April 22, 1908. The language of both sections in
that regard is identical and subject to but one construe:
tion as to the character of carriers affected. The trial
court and the Court ef Appeals both held that your
Petitioner was “a common carrier by railroad” within
the meaning of that Act, coatrary to the holding of this
Court in Omaha & Council Bluffs St. Ry. Co. vs. Tater:

BRP RTA AAE em RP RI PE YS Dima tit CORA : 5 = Catlin ages

state Commerce Commission, 230 U. 8., 324. (2) It
involved also the construction of Sections 3 and 4 of the
Aet of April 22, 1908, which are undoubtedly general
statutes in language, scope and purpose, aad ean receive
but one proper construction whether applicable to eases
arising under Neetion 1 or wader Section 2 of the Act of
1908, and therefore make it incumbent on this Court to
give them that authoritative and final construction which
it alone can give. The only way that such a construction
ean be ascertained and enforeed under the conditions
assumed, is by this Court taking jurisdiction by certio-
rari, if necessary, and reviewing the construction placed
on these sections by the Court of Appeals of the District
of Columbia in the instant case.

The same is true as to Sections 6 and 9 of the Amenda-
tory Act of April 5, 1910 (36 Stats. L., 291).

It would be intolerable if the Court of Appeals of the
District of Columbia should be permitted wader the guise
of construing Section 2 as a purely local statute to put
& coastruction on all the other seetions of that Act
different from that recognized by this Court, and further,
that such misconstruetion should be beyond the control
of this Court and subject to but one construction as to
the character of carriers affected.

The trial court and the Court of Appeals of the
District of Columbia both held that the institution of
the original suit, though no elaim was there made for
conscious pain and suffering of the decedent, stopped the
running of the statute of limitations as to that elaim
which acerued instantly to the decedent before his death,
us well as to the right of aetion given by the Act origi-
nally for the benefit of the next of kin alone, and whieh
did not and could not acerue to any one until after his
death, thergby holding that the right of action made to
survive under Section 9 was identical with the right of
action given under Sections 1 and 2 originally for the

.)

heaefit of the next of kia, contrary to the holding of this
Court in Michigaa Central Railroad vs. Vreeland, 227
U.S... 50: St. Louis, Iron Mountain & Southern R. (Co.
re. Craft, 237 U. 8., 648; Garrett vs. L. & N. R. Co.,
235 U.S., 308.

Of eourse if this Court holds that the writ of erro)

eranted by the Court of Appeals of the District of

Columbia which brought this case to this Court was
properly granted, then this Petition could) well be
refneed: and as heretofore stated, it is only through an
abuudanee of caution and to preserve the right of this
Court to review the judgment, if it holds that the writ
of error was improperly awarded, that this Petition 1s
presented,

Counsel for the Respondent, in resisting the applica
tion of your Petitioner for the writ of error when applied
for. cited but two cases to support their contention:
te wit. American Security & Trust Co. 1s. District ol
Columbia, 224 U. 8., 491; Wash., Alex. & Mt. Vernon
R. Co. rs. Downey, 236 UL 8., 190. The former eas:
involved a purely local statute and can have no applica
tion to the instant ease. The latter ease arose under th
First Employers’ Liability et of 1906, which had pre-
viously been declared unconstitutional as to the States,
but constitutional as to the District of Columbia. “This
Court held that it thereby became a local statute purely
and not a general statute. The present Chief Justice,
adyverting to this feature of the case, said (p. 193):

“While the transit in which the train wa-
engaged was not purely local, the accident com-
plained of oecurred within the coufines of the
District of Columbia, and the statute beeame
applicable concerning it because, as a local statute,
it governed in the absence of legislation by Congress
of a general character gove rning the subject. Chicago,
VM. & St. PLR. Co. vs. Solan, 169 UL S., 138, 12
L.. Ed., 688, 18 Sup. Ct. Rep., 289; Pennsylvania

+

°
é

R. Co. vs. Hughes, 191 U.8., 477, 48 TL. d., 268,
24 Sup. Ct. Rep., 132; Martin es. Pittsburgh «&
. &. RR. Coe., 208. U. &., 284, 61: L. Ed., 184, 27
Sup. Ct. Rep., 100, 8 Aan. Cas., S¢. To take
jurisdiction, therefore, we would be compelled to
decide that a purely local statute which would be
void if it were geveral in character.was yet opera-
tive in such aspect, and that because a local law
was applicable to a given situation solely for the
reason that there was not general law to control,
the local law was a general law.”

There is, however, no room for such 2 conte! tien in
the preset Case. It is true that Section 2 applies to
Seommoa earriers by railroad withia the Distmet of
Columbia,” but it also applies to “cominon earriers Vy
railrond within the territories, the Panama Canal Zone,
and other possessions of the United States.” So that, 1
ix not strietly local even under Section 2.0 But even more
clearly Section 1 is confessedly “general” in every aspect
and applics to‘ every common earrier by 1: road white
engaged in commerce between any of the several states
or territories or between any of the states or territories,
or between the District of Columbia ei d any of the states
or territories,” thereby excluding it from the reasc, ing
of Chief Justice White which made the local statute Gals
applicable in such transit orn Tike absence of legislation hy
Congress of a general character gov rning the subject.”

The case of MeGowan vs. Parrish, 228 U.8., 512, very
clearly lays down the rule that when the construct lon of a
law of the United States which is applicable to the United
States generally is drawn in question by the defendant,
aright of appeal exists and a writ of error should be
granted.

For the reason that the only way that uniformity of
construction so essential to the proper administration of
these statutes ean be enforced in the Distriet of Columbia
in event it should be held that Seetion 2 and not Section

ee

Sep

Sofi.

RE ORO OE

os races

8

1 is the only section under which the right of action
accrues when injuries occur within the District of Colum-
bia, even though both employer and employee are then
engaged in interstate commerce, and that the section is
purely local in its application, and affects all the other
sections of the Act with its local character, is by review-
ing such erroneous decisions, it is respectfully prayed
that a writ of certiorari be awarded.
All of which is respectfully submitted.
WASHINGTON RAILWAY AND
ELECTRIC COMPANY,
By Counsel.

Attorney for Petitioner.

SUBJECT INDIEN.

PAGE
REASONS in opposition to the writ of certiorari:
First: The case is already pending in this Cours
on writ of error. es : era pe
Necond: The time for presenting a petition for
writ of certiorari will have expired on the date
When said petition is submitted. 2A
hird: The petition is not sworn to }
wrth: Phe petition does not correctly or com
pletely state the proceedings below, and is mis
leading 6-10
Conclusion: 19-20
LIST OF CASES,
PAGE
Hl. Surety Co. ve. Peeler, 240 UL S., 214 sf)
Kansas City W. Ry Conv. MeAdow, 240 UL 8.) 510 12-14
mo. KB. T. RK. Co. vy. Wulf, 226 U. 8., 570 )
Seaboard Nir Line, 24t Ul 8. 290 10
St. Louis, 1. M.& S. Co. vy. Craft, 236 0. S8., 648 hy
Spokane & I. E.R. Co. vo U.S. 241 UL S., 844 Z

Spokane & bo fo oR. Conv. Campbell, JEP ES. $9 18
mmane & (Ry. v. £.. €., 20 UU. &., 324 Pan

United States vo BO & OLS. RR. 226 UL S., 14 11

!

PORa Rs Sent crne en Be ay ea

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TE ae

IN THE

Supreme Court of the United States

OCTOBER TERM, 1916.
No. S26.

File No. 25.565.

WASHINGTON RATLWAY AND ELEC
TRIC COMPANY, Petitioner,
US,
ANN CATHERINE SCALA, ADMINIS
TRATRIX OF THE ESTATE OF ALVIN
JOSEPH SCALA, DECEASED, Respond

ent.

BRIEF
ON BEHALF OF RESPONDENT

IN OPPOSTTION TO PETITION FOR WRIT OF

CERTIORARI

The respondent, Ann Catherine Scala, administratrix
of the estate of Alvin -loseph Seala, deceased, respect
fully objects to the petition for, and the issuance by this
Honorable Court of, a writ of certiorari, for the follow

ing reasons:

IRE Eee Rane mena

Cee ee

Mpawtigtiey ‘ A Mite S

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~

FIRST The case is already pending in this Court
on writ of error.

The action was originally brought on January 24,
i914, by respondent as plaintiff in the Supreme Court
of the Distriet of Columbia, and on December 11, 1915,

judgment on verdict in favor of plaintiff was entered for
$7,500. This judgment, on December 4, 1916, was at
firmed on appeal by the Court of Appeals of the Dis:
trict of Columbia, which court on December &, 1916,
granted a writ of error to remove said cause for review
by this Honorable Court. The petitioner, as plaintiti
in error in this Court, has filed its supersedeas bond,
and has had the Transcript of Record on said writ of
error printed, and the same is now on file in the clerk's
oftice of this Hlonorable Court.

It is respectfully submitted that, where the entire rec
ord of proceedings in the lower courts is embodied in
the printed Transcript of Record in this Court on a
pending writ of errer, a petition for writ of certiorari
in the same cause should be denied by this Honorable
Court.

SECOND: The lime for presenting a petition for writ
of certiorari will have erpired on the date when said

petil ion ts submitted.

On the 16th day of February, 1917, Daniel W. O° Don
oghue ond Arthur A. Alexander, attorneys for Respond
ent, were served with a printed Cunsigned in print or
ink) copy of the petition herein, together with typewrit-
ten notice that said petition “will be submitted to the
court on Monday, Vareh 9, 1917 at 12:00 noon, or as

soon thereafter as counsel can be heard: and on said

°
»

February 16, 1917, said petition and notice were “filed”
in the office of the clerk of this Honorable Court.

It appears from said petition that it is sought to have
this Honorable Court review by writ of certiorari a cer
tain tinal judgment of the Court of Appeals of the Dis
trict of Columbia rendered on the gfh day of December,
191,

Section 6 of the Act of Congress approved Septeniber
6, 1916, entitled An Net to Amend the Judicial Code.”

ete. 39 Stats. L.. 726. provides :

“Thatno * * * writ of certiorari intended
to bring up any cause for review by the Supreme
Court shall be allowed or entertained unless duly
applied for within three months after entry of

the judgment or decree complained of; * * *,

It appears from the “minutes” of February 5. Dt, of
this Honorable Court that on that daw the Court cad
journed until Monday, Mareh S, mext. at 7f a elock.”
Counsel for respondent understand that, while this
Honorable Court will convene on said Mareh 5, bOtT, at
said Jf oelock, the Court will not then be in session for
the presentation or submission in open court of any peti-
tions or motions of any description whatsoever, and that
the Court will not continue in session on said day to as
late as 12:00 noon, the time designated in said notice
for the submission of the petition herein, because: said
“T2200 noon” of said) Mareh 5, D917, is the appointed
hour for the reinaugural ceremonies of the President,
and because members of the bar cannot enter the Capitol
building to appear before this Honorable Court on said
day. Counsel for petitioner in designating said °12:00
hoon’ in said notice knew, or should have known, the

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above-mentioned facts, and was bound to take notice
of the fact that this Honorable Court will convene on
said day, pursuant to the said entry on its minutes at
if o'clock, and not at 12 o'clock, on said March 5, 1917.

It is respectfully submitted that to allow the petition
herein to be presented in open court in advance of the
hour designated in said notice, that is, at 11 instead of at
12 o'clock on said March 5, 1917, would be contrary to
the notice prescribed by Section 3 of Rule 37 of this
Honorable Court (even if counsel could eain admission
to the Capitol building and court room on said day).

It is apparent, therefore, that the petition herein will
not, and cannot, be “sibiitted™ or “presented” in open
court at said TP ofclock, or at said 12 o'clock of said
Mareh 35, 1917, or at any time wafil after said Mareh
5. 191% whieh will be when more than “three mouths”
have elapsed from the date of the judgment complained
of: and that. therefore, this Honorable Court has ne
power or jurisdiction, under said Act of Congress, to
issue go owrit of certiorari to review said judgment of
December 4. 1O16,

It ix respectfully submitted that the petitioner in this
case cannot bring itself within said: statutory period of
“three months,” by simply having */iled™ its said petition
in said clerk's office on said Pebrnary 16, 117, for the
reason that the provisions of Section 4, Rule 37, of this
Honorable Court do not apply to the present situation.

Said rule reads as follows:

“4. Tnamy ease where the time for presenting
aw petition for certiorari is expressly limited by
statute and where the court has adjourned for
the term, the petition may be presented during
such adjournment and within’ the period pre

scribed, by filing it, together with the printed
record and briefs, in the office of the clerk, and
such filing shall have the same effect as a presen-

tation in open court.”

The “printed record” was filed herein as part of the
proceedings on the pending writ of error herein.

It is evident that said rule applies only to the sum
mer recess or vacation of the Court, “where the cout
has adjourned for the term.” The period of time from
said February 5 to March 5, 19tt, is bat part of the
“October Term, 19160 and is not an adjournment of
said term, and said Mareh 5, P9TT, is not the commence-
ment of an “adjourned or special term,” because Sec.
230 of “The Judicial Code™ Cas amended by the Act of
September 6, 1916, 39 Stat. at L. 726), provides that:

“See, 230. The Supreme Court shall hold: at
the seat of government one term annually, com
mencing on the first Monday in October, and such
adjourned or special terms as it may find neces-

sary for the dispatch of business.”

and because Rule 27 of this Honorable Court provides

that:

“The Court will, at every term, announce on
What day it will adjourn at least ten days before
the time which shall be fixed upon, and the Court
will take up no case for argument, nor receive
vny case upon printed briefs, within three days
next before the day fixed upon for adjournment.”

As stated, the minutes of the Court for said February

PEE PRE EEN LNG CERI ARM E :

ELIA ER, ATES EN Re RIG RAT. sie itn ne” ere ee ee - P

», POET, show: "Adjourned until Monday, Mareh 5 next,
at 11 o'clock” and there has been no announcement of
adjournment “for the ferm” during this present October
Term, 19E6, in accordance with said Rule 27. whieh
would make said) March 5, 1917, the commencement of

an “adjourned or special term.” or any action by the
Court which could change the status of the period of
said Pebruary 5 to March 5. L917, from a suspension of
sessions (i and as part of said “October Term. 19t6°
toan adjournment “for the term.”

Therefore, it is respectfully submitted that, under the
rules of this Honorable Court and under said Aet of
Congress, the mere “/i/ing” of said petition in said clerk's
office on February 16, 1917. and its subsequent actual
presentation in open court on any date affer said: Mareh
» INIT, do not constitute a writ of certiorari “duly ap
plied for within three months after entry of the jude
ment or decree complained off” and hence that said: peti
tion for said writ should be denied by this Honorable

Court.
THIRD: The petition is wot sirorn to.

The petition for writ of certiorari in this case is not
supported by the aflidavit of the attorney for petitioner,
or of any officer of the petitioning corporation, or by
any affidavit whatsoever, which omission is contrary to
the uniform practice; and, therefore, it is respectfully
submitted that said) petition should be denied by this
Honorable Court,

Fol a isi Py The petition does ol correctly CO
pletely state the proceedings below, and is misleading.

The petition for writ of certiorari in this case does net

RAR aL 2a ae dees 8 ¥ " _ ‘
: Rae: adic babel Inara ~ 7 *
- rhtntew wal ist

correctly or completely state the proceedings below in
the Supreme Court, and in the Court of Appeals, of the
District of Columbia, and is misleading in that:

(a) The petition alleges erroneously Cat the bottom

of page 1),

“that the getion arose under the Federal lm-
plovers’ Liability Act of April 22, 1908 (35

Stats. L., 65).°
and (on page 2) that:

“The declaration as originally filed made no
claim for conscious pain and suffering on the part
of decedent, and only claimed pecuniary dam-
ages resulting to the next of kin for whose bene

fit it was instituted,”

whereas the action was brought not only under said
Act. but also under the Amendatory Act thereto of
tpril 4, (910 (86 Stats. L., 291), and whereas the dee-

laration cliimed originally not only pecuniary damages

resulting to the next kin but also damages for the con-
scious pain and suffering of decedent, as will appear
by an inspection of the 3d and) tth counts of the dee
laration (Ree. 6-8).

(by The petition alleges erroneously Con page 2)
that “The decedent survived the injury but thirty min-
utes. and died without having regained consciousness td

whereas the evidence in the case, as shown by the trans:

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LPP IRR SRE >

cript of record herein, establishes: that decedent survived
at least forty-one minutes o longer, and that he was
conscious during that period because he was constantly

eroaning and moaning, and opened his eves and spoke,

| AHN Bie tol EAL

saving some time after the injury: “Oh, my God.” See
the testimony of the witnesses: Tarbell (Ree. 20),
Hlardy (Ree, 22-25). Burroughs (Ree. 25-24), Knowles
(Ree. 24), Martz (Ree. 25), Perry (Ree, 27), Whalen
(Ree. 31), Holmes (Ree. 46), Wiser (Ree. 50-51).

(¢) The petition alleges erroneously and mistead-
ingly ton page 2) that:

“In October, 1915, more than two vears after
the accident, and during the progress of the trial,
the declaration was amended so as to allege and

seek a recovery for conscious pain and suffering,”

whereas the bill of exceptions in this case certifies that
the declaration was amended not only during the prog:
ress of the trial, but was also amended seven days before
trial, namely, on October 20, 1915, as follows:

“Andon that date and at that time the attorneys
for the plaintiff and the attorney for the defendant
being present in Court, and thereupon counsel for
plaintiff asked leave of the Court to amend the
fourth count of the declaration, by inserting in
the fifteenth line of the last page thereof, after
the word hemorrhages,” the words ‘and causing
him to suffer intense pain and injuries, and there
upon counsel for defendant stated to the Court
THAT HE DID NOT OBJECT TO THE AL
LOWANCE OF THE AMENDMENT; and there
upon the Court allowed said amendment, and
the case was continued and set for trial the fol

lowing week” (Ree. 17):

and the trial commenced
“on the 27th day of October, 1915;” (Ree. 17):

and whereas the original declaration pointed to the chain
for conscious pain and suffering, and the amendment
of said October ZO and also of Oetober 2g, 1915, were
merely in amplification of the allegations in that respect
in the original declaration, and therefore related back
to the beginning of the suit.

As was said in Il. Surety Co. v. Peeler, 240 U. S.,
214:

“In respect to the amendment of the complaint,
it is apparent that * * * there was an exist
ing right of action under the statute at the time
the suit was brought. * * * Phe Court mere
ly permitted the defective statement of the exist-
ing right to be corrected by the addition of appro
priate allegations, and in this there was no error.”

And in the case of Mo., K. & T. R. Co. v. Wulf, 226
U. S., 570:

“Nor do we think it (the amendment) was
equivalent to the commencement of a new action
so as to render it subject to the two years’ limita
tion. “© * * Tt introduced no new or different
state of facets as to the ground of action, and
therefore it related back to the beginning of the

suit.’’

And in Seaboard Air Line vy. Renn, 241 U. S., 290:

10°

“If the amendment merely expanded or ampli-
fied what was alleged in support of the cause of
action already asserted, it related back to the
commencement of the action, and was not affected
by the intervening lapse of time.”

(dd) The petition alleges erroneously and mislead-

ingly (on page 2) that:
“The defenses were: (1) That the defendant,
a street car company purely, not engaged in the
transportation of freight of any kind, was not a
‘common carrier by railroad, within the mean-
ing of the Federal Emplovers’ Liability. Law of
1908."

Whereas the entire bill of exceptions in this case may be
searched in vain for any words, statement, objection,
or exception therein, supporting the allegation that any
such defense was ever made in the fria/ court, or passed
upon by the trial court. Tt is true that such a defense
was nde for the first time in the Court of Appeals of
the Distriet of Colmmbia and passed upon by that Court,
but, asa matter of record, and as a matter of fact, that
defense, predicated on the term “railroad” was never
made in the fri? court. [ts first appearance in the case
Was in the printed Brief of petitioner as appellant in
the Court of Appeals of the Distriet of Columbia, and
in that Court, respondent urged, as if wow urges before
this Honorable Court, that a defendant cannot raise a
defense for the first time on appeal when it never raised
that defense on trial or made the slightest objection
based thereon all during the progress of the trial.

Moreover, the above-quoted allegation of the petition

il

is erroneous in stating that petitioner is a “street: car
company purely.” because the bill of exceptions herein
certifies that respondent introduced in evidence a cer:
tificate and the following U. S. Statutes-at-large ( Rec.

“3 Stats. at L., 326,
28 Stats. at L., 492,
29 Stats. at L., 246,
31 Stats. at L.. 270."

An examination of these statutes and certificate shows
that petitioner, under its old corporate name, the “Wash.
& Great Falls Electric Railway Company.” was chart
ered not as a “street car company purely” but as an
electric trolley railway line running entirely westieard!y
from 36th and Prospect Streets, northwest, in the city
of Washington, Do C.. out to Cabin John. in the State
of Marvland; that is, as an interurban or suburban
electric trolley line, doing an interstate business, run-
ning from the western edge of the city westward)
through sparsely-settled suburbs and the open country,
with the right to institute condemnation proceedings
to acquire its right of way, ete. and that afterwards,
imultaneously with the change to its present corporate
name of “The Washington Railway and Electric Com-
pany” itentered into a contract whereby it obtained the
use of the tracks of a city street railroad running east-
wardly from its said beginning. As was said by the
Court of Appeals (Ree. 75): The petitioner “was in
corporated under the Net of Congress * pie ak
examination of this act and of the acts amendatory
thereof * * diseloses that the company was
chartered, not as a street railway company, but as an

eleetric trolley suburban and interurban railway com

"
:
mi
*
8
o
‘
2
:
rf]
ae
ie
‘4
7
an
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4

12

pany,” ete. Tn addition to the evidence of said statutes
and certificate, the bill of exception discloses (Ree.
33) an admission by petitioner's present counsel, who
also represented it in both courts below, that petitioner's
railroad is constructed on its own property :

“Mr. O'Donoghue: * * * You admit: that
vou own the station. You willadmit that instead
of my having to bring the Recorder of Deeds up
here?

Mr. Barbour: To presume it is. Tt is on our
right of way. * * *.

Mr. O'Donoghue: It is of record that they own
the right of way and the land running from Pros-
pect Avenue up to Glen Echo, and also the rail
road station on 386th Street on the east side of
36th Street, between Prospect Avenue and = N
Street.

Mr. Barbour: = Yes.”

The injury occurred not within the city limits of
Washington or Georgetown, but out in country on the
petitioner's right of way at MeCow’s station, about a
mile west of the western edge of Georgetown, as shown
by the evidence (Ree. 8, 51).

It is respectfully submitted that under the above-men-
tioned evidence, and from other evidence to be found in
the Transcript of Record, and under the decisions of
this Honorable Court, respondent is a “common carrier
by railroad” within the meaning of the statute.

See Kansas City Wo. Ry. Co. vo MeAdow, 240
U. Bi, oes
Spokane & I. E.R. Co. v. UL S., 241 U.S. 344;

Spokane & bE. R. Co. ve Campbell, 241 U.S.
497 ;
Omaha & CB. Ry. ve be. €., 280 U.S. 324.

The petition herein on pages 4 and 5 attempts to argue
that the Omaha & Council Blutfs Ry. case, sapra, is au
thority for its contention that it is not a “railroad”
within the meaning of the Emplovers’ Liability Aet, but
that case construed the Interstate Commerce Act of
ISST, and not the Emplovers’ Liability Net of 1908. Mr.
Justice Lamar, in delivering the opinion of the Court,
pointed out that “in ISS7 that word (railroad) had no
fixed and accurate meaning” and that “the meaning of
the word is to be determined by construing the statute
as a whole” and reasoned that the Act of ISS87 only
“referred to railroads which were required to post their
schedules, not at street corners where passengers board
cars, but in ‘every depot, station or office where pas-
sengers or freight are received for trausportation’,” and
that “only a few of its requirements are applicable to
street railways, which did not do the business Congress
had in contemplation, and had not engaged in the pool-
ing, rebating and discrimination which the statute was
intended to prohibit,” and, therefore, held that the street
railway in question was not a “railroad” within the
meaning of the Act of ISS8T. In the course of the opinion,
however, Mr. Justice Lamar took occasion to sav:

“But it is said that since TS8S87, when the Act
Was passed, a new type of interurban railroad
has been developed, which with electricity as a
motive power, uses larger cars, and runs through
the country from town to town, * * * We
are not dealing with such a case, but with a com

Sea RRs Ls EAE RL en DOR TRA Stn DO? WANED BE BA BS. Le,

14

pany chartered as a street railroad. * * *
The case was heard on demurrer, with the opinion
of the Commission treated as part of the record.
It indicates that at some points the line is on
private property, but where this is and to how
great an extent does not appear :”

having previously observed that:

“Applying this universally accepted rule of con-
struing this word, it is to be noted that ordinary
railroads are constructed on the companies’ own
property,”

and:

“Street railroads, om the other hand, are local,
are laid in streets.”

Moreover, petitioner's contention is no longer an open
question in this Court, but was disposed of in the case
of Kansas City W. Ry. Co. vo MeAdow, 240 UL 8. 51,
wherein it was said:

“The errors assigned are, in substance * * *
that the Act (Emplovers’ Liability Act) does not
apply to electric roads. * * * The defendant
road appears to be of the class of the Traction
Company that was before the Court in United
States vo Baltimore & Ohio Southwestern R. R.,
226 UL S., 14, and that was excluded from the
decision in Omaha & Council Bluffs Ry. v. Inter-
state Commerce Commission, 230 U.S... 324, 337.
Such roads have been held to be within the acts

of Congress.”

ERLE LNB, ILL ha PAARL RON DIL

15

(@)) From the allegation (on page 2) that:
“Phe defenses were : lal

(6) That as to the conscious pain and suffer

ine. (a) That the evidence did not show that he

had undergone conscious pain and suffering:

ib) That the statute of limitations barred such

a claim before the declaration asserting it) was

amended.”

it might be inferred that said defenses were made in the
first instanee by defendant at the trial; whereas the bill

of exceptions certities that (Ree. 41-2

=

“at othe @lose of the plaintiffs case, the de
fondant, by its counsel, moved the Court :
te instruct the jury te return a verdict for the
defendant upon the ground that the evidence is
not sufficient to maintain the case stated by the
plaintif? in her declaration, stating ‘as matter of
law, that a pole 30 inches away from the stan
chion under the circumstances shown in this case
is far cnough away to relieve the company from
any negligence if a man is injured walking alone
the running-board with reasonable care’ and
stating the evidence showed that decedent was in
jured as the result of cassumption of risk ¢ and
in addition to that, stated there is no evidence
here to sustain any other assumption but) that
this man was injured as the result of losing his
foothold on the runnine-board. THESE WERE
THE ONLY SPECIFICATIONS MADE BY
COUNSEL FOR DEPENDANT IN SUPPORT
OF TIS MOTION :”

MNS P Jes os De

16

and that defendant's motion for a directed verdict at
the close of all the evidence in the case (Ree. 60), was
but a renewal of its former motion; and that it was not
until after the trial court had passed upon plaintit?’s
first five prayers «Ree. 66), and was considering plain
titt’s Praver No. 6 that defendant raised the question
of the bar of Statute of Limitations, and made any ob-
jection as to the claim for conscious pain and suffering.
And at no time in the trin} Court, not even on its motion
for a new trial, did defendant make the objection that it
was not a “railroad” within the meaning of the statute.

(f) The petition erroneously and misleadingly al-

leges (at top of page >) that:

“The evidence showed irithoul contradiction
that the condition complained of was a permanent
and obrious one; that * * * the decedent * * *
had been over this route repeatedly and in
excess of 150) times within a month or two of
his death; that the proximity of the pole did
not cause him to fall. but that he lost his foot-
ing on the rinning-board.” ete.

because the bill of exceptions shows that it was the
proximity of the pole that enused decedent to be struck
thereby, and that it was contact with the pole which
caused decedent to fall, and that decedent did not lose
his footing until after he was struck by the pole; and
because said allegation is misleading in that it fails to
etate. as shown by the bill of exceptions, that half of the
trips made by decedent were on the return track away
from the pole in question, and that decedent prior to
the time of the injury had never passed that pole irhile

on the running-board of the ear.

17

And because the petition, in stating: "Without contra:
diction that the condition complained of was) * * *
obrious.” disregards entirely the evidence to the con-
trary found in the bill of exceptions; for instance, the
testimony of the witness Wiser, who was the motorman
of the car at the time plaintiff's intestate, the conductor
on the same car, Was injured. Wiser testified as a wit-
ness on behalf of defendant, and his cross-examination

Was in part as follows:

“©. You never noticed that pole, did you?

AL No. sir: To never did.

Q. You never knew anything of it before this
time?

ALT have saw it many a time.

; * ** % * # %

Q. Was there anything to attract your at
tention to that pole more than any other pole?

A. Xe, 2.

* “ *

On redirect examination withess stated le lad made
that runout there wright often” (Ree. ot.

And the testimony of the witness Whalen. who wees
called by both sides, and who testified that the next
morning after the injury he went to the scene thereot
with certain officials of the defendant company. when
measurements were taken (Ree. 31, 49), and that un
der the circumstances” of discussing while there “the
distance of this particular pole as compared with the
other poles.” he was unable to notice that if was close:
to the track than the average, or normal, distances of

the other poles, and said on the withess stand :

“To oguess it was the average distance of the

poles away from the tracks.”

ae EE NT ES VE SERRE I wT TREN RE Bc WEY ESTA SL Fecha YD we Sa a eT

Is

The evidence in the case shows that the pole in ques
tion was closer to the track than any other pole along
the track. (Rec. 40-1.)

(Oo) The petition alleges erroneously Con page 3)

that:

“The Court refused to direct the jury
that defendant was not a common carrier by

railroad

because, as hereinbefore mentioned, the trial court was
never called upon to pass upon said question; it) was
hever raised in the trial court by defendant,

(hy The petition alleges erroneously and mislead

ingly (on page 3) that:

“The Court © * * refused prayers sub-
mitting those questions (assumption of risk) to
the jury.”

because the bill of exceptions certifies that the Court
granted the following prayers on the question of as-

sumption of risk :

Plaintit!’s Praver No. 3 (Ree. 61),
Plaintiff's Praver No.5 (Ree. 61),

and also fully and fairly charged the jury in that re-
spect (Ree. 70-1) pand because there was only a general

objection taken to the Court's charge (Ree. 73).

(1) The petition alleges erroneously (page 5) that:

“The trial Court and the Court of Appeals of
the District of Columbia both held that the insti-

Wa ab Rb IER MIM ATRL G ME TAR ANUS 3 Se AC

19

tution of the original suit, (hough wo clan was
there made for conscious pain and suffertrg, stop-
ped the running of the statute of limitations,”

ete., .

whereas such was not in facet the ruling of cither the
trial Court or of the Appellate Court, because, as here-
inbefore pointed out, together with citations of authori
ties hereinbefore, the trial Court held that the original
declaration did “point” to the claim: for conscious pain
and suffering so that the amendment in respect thereto
Was merely in amplification of the allegations contained
in the original declaration, and was not barred by the
Statute of Limitation as it related back to the original
declaration, and the Court of Appeals affirmed this rul
ing of the trial Court,

CONCLUSION,

On the questions of whether the allegations of the
original declaration “pointed” to a claim for conscious
pain and suffering of decedent, and the amendment in
that respect, and whether petitioner is a “railroad”
Within the meaning of the statute ( Eimplovers’ Liabilits
Act of 1908 and Amendment of T9100). if should be
borne in mind that this Court, in the case of St. L. 1.
M. & S. Co. v. Craft, 287 UL S8., G48. which involved a
claim for conscious pain and suffering of a decedent, am

nounced that the Aet

“should not be narrowly or restrictively inter:
preted.”

For the reasons hereinbefore ser forth. and for the

20

further reasons that it is apparent from a reading ef
the petition herein and from an inspection of the Tran-
script. of Record herein, that a review is sought in this
Court mainly of the weight of the evidence in the trial
Court and that no questions of law were presented to sail
Court of Appeals, or will be, or can be, presented to
this Court which have not already been decided by this
Court in other cases adversely to the contentions of
petition herein by this Court, and that the rulings of
both lower courts were in accordance with the decisions
of this Court, it is respectfully submitted that the peti-
tion for writ of certiorari in this case should be denied
by this Honorable Court.

DANIEL W. O'DONOGHUE,

ARTHUR A. ALEXANDER,
lilorneys for Respondent, Ann
Catherine Scala, Administratrir
of the Estate of Alvin Joseph
Neala, Deceased.

*

Sie
eas

[nes D. MAHER |
CLERK}

IN THE

Supreme Court of the United States

OctoBER TERM, 1916.

No. 826.

WASHINGTON RAILWAY AND ELECTRIC COM-
PANY, PLAINTIFF IN ERROR AND
PETITIONER,

US.

ANN CATHERINE SCALA, ADMINISTRATRIX OF
THE ESTATE OF ALVIN JOSEPH SCALA, DE-
CEASED, DEFENDANT IN ERROR AND R:E-
SPONDENT.

In Error and on Petition for Certiorari to
the Court of Appeals of the District
of Columbia.

JOHN S. BARBOUR,
Attorney for Appellant and Petitioner.

LAW REPORTER PRINTING COMPANY, 616 FIFTH STREET NORTHWEST, WASHINGTON, D. C.

INDEX.

INDEX TO SUBJECT-MATTER; ASSIGNMENTS

OF ERROR; DISCUSSION OF POINTS OF

LAW AND FACT.
Pre
, Statement |
Assignments of Error 14
Errors Assigned on Petition for Writ of Certiorari 1
Errors Relied On 16-28
Preliminary. , YS
Discussion of Points of Law and Fact 28

I. The application of the Federal Emplovers’

Liability Law of 1908 to the case stated and

to the case proved 31
(a) The appellant company as a matter
of law can not under the evidence be

held to be a common carrier by a
railroad within the meaning of sec- 4
tion 1 of the Act of Congress of April &
22, 1908 31-42 &
(b) At the most that question was one of &
fact which should have been sub- E
mitted to the jury and not deter- Ss
mined for the jury by peremptory &
instructions as was done by granting Fi

appellee’s prayers Nos. 4, 5, 6, 7, 8,
all of which assumed as matter of
law the appellant to be a common
earrier by railroad within the mean-
ing of the Federal Statute, and as
such applied to the case 42-54

li INDEX

Il. The action of the trial court as affirmed by
the Court of Appeals was erroneous in re-
spect. to the question of recovery for con-
scious pain and suffering Pasuasees

(n) Because after all the evidence had
been taken and all witnesses dis-
charged, the court undertook to
allow the pleading to be so amended
as to introduce a new cause of action

(b) Which was already barred by limi-
tation of the statute which per-
mitted the cause of action to survive

(c) There was no sufficient evidence be-
fore the jury to warrant a recovery
therefor even if properly pleaded...

(d) The declaration even as amended
failed to assert sufficiently a claim
for such pain and suffering

(ce) The allowance of the amendment
operated a surprise and the appel-
lant’s motion for a continuance
should have been granted

(f) The appellee’s demurrer to the appel-
lant’s plea of the statute of limita-
tions should not have been sus-
tained —

Ill. There was no evidence of negligence on the
part of the appellant resulting proxi-
mately in the death of appellee’s de-
cedent. Hence the court erred in failing
to direct a verdict for appellant at the
conclusion of the appellee’s evidence and
again at the conclusion of all the evi-
dence. eee

(a) Because the appellee’s own evidence

uncontradicted showed that the de-

Page

54-68

OS-83

S3-S0)

90-95

Q5-! Me )

YG

97

INDEX il
Page
cedent came in contact with the pole
after he lost his footing and that he
did not lose his footing because the
pole struck him................................ 97.116
(b) Because the line of poles was not
negligently placed dangerously near
the tracks as alleged in the declara-
ey a ee AS Hn a one 116-120
(c) It is not negligence for an electric rail-
way to maintain permanent and
visible structures in close proximity
de | eee 120-122
(d) Because whatever dangers resulted
from the proximity of the poles to
the track was inherent and obvious
the decedent had ample oppor-
tunity to observe and appreciate
the danger, and therefore assumed
the risk resulting therefrom 122-152
IV. Even if there was evidence on any of the
above points to sustain a finding of the jury
against the appellant, such evidence merely
raised disptited questions of fact thereon
and the court erred in instructing the jury
peremptory in regard thereto in the follow-
ing respects _. ons 152
(a) In granting appellee’s prayers 3-A
and 5, and in refusing appellant's
prayers III-A, VII and IX 152-159
(b) In refusing appellant’s prayer IV in
respect to the facts from whieh both
knowledge and assumption of risks
are assumed 159-160
The Court Erred in Refusing Appellant's
Prayer X aac rineaceee 16]

fuigecaetth Se ne NNR rN Son oe ee
EPIRA NY es eee Sie Sa Sa 6 Le

Bees Sie S “ fil
EE aS RES A

INDEX

iv INDEX TO EVIDENCE.

Mrs. Fred G. Tarbell.
Mr. Geo. G. Whitney. _.

Mr. Theodore H. Hardy, Jr...

Mr. John H. Burroughs

Mrs. Emma E. Knowles............. = one z Ro
ee I ca lawendcumousasesaus
De I oo cassie ts casaniacbacustchens

Dr. Wm. F. O’ Donnell

My. B. Peyton Whaten......................-............
Mrs. R. Evelyn Burge............................
Mr. Herbert 8S. Gormley...
Dc I OF I aos a scence.
I ie I sia veloc ucbiedewabedinndsbaecone
Miz. Seery Teewerty..................-.2..-.........

Mr. Harry Vogel.......................
Mr. Wm. F. Holmes

Mr. Wm. Emmitt Sie. - | Ra Eh
Mr. L. LeGrande Johnston.....................................

Page

16, 102-104, 137

16-17

83, 104-105
S4

S4

85, 105

85, 105-106
By SG
_ &6, 97-102
icssdinivcwe OO
109-111, 115-116
_ 111-112
112
112-113

_... 113-114
114-115
115
116

INDEX v

INDEX TO CASES AND AUTHORITIES CITED.

Page
American R. Co. vs. Didrieksen, 227 U.S. 145,

149 G1
American R. Co. vs. Birch, 224 U. 8., 547 79
Austin vs, Boston & Maine R. (Mass.), 41 N. EL,

288 13S
Atlantic & Pae. R. Co. vs. Laird, 164 U. 8., 393,

395 79
Atlantic Coast Line vs. Burnett, 239 U.S. 199,

201 83
Bailey on Personal Injuries (2d Id.), Vol. 2.

See. 3538, 356 (Note 32) 148-149, 150, 160
Baltimore & Obio R. Co. rs. Stricker, 51 Marvy-

land, 47 133
Bank of United States rs. Smith. 11 Wheat.. 171.

174 16)
Baugham rs. N. Y. P. & N. R. Co., 241 U.S., 237. 124125
Bavlor vs. Del. L. & W. R. Co., 47 N. J. 1... 28 133
Bell ys. Railroad Company, 168 Mass., 443: 47

N. E., 118 120, 126
Bengston rs. Chiengo & St. PLR. Co., 47 Minn..

486 129, 100
Bouvier’s Law Dietionary, Vol. 2 35
Bovd vs. Harris, 176 Pa. St., 484 136
Brewer rs. Railway Company, 45 Hun, 595: 26

N. E., 325; 11 1. R. A., 485; 21 Am. St. Rep.,

47 32
Bridge Preprietors rs. Hoboken Company, 1

Wall., 116 1]
Brossman rs. Railrond Company, 113 Pa. St., 490:

6 Atlantie, 226 131, 133
Brown rs. Railway Company, 60 Towa, 61 123
Buel rs." sfer Co., 45 Mo., 568 7]
Buntin es. icaulway Co., 41 Federal, 744, 749 71,82

vi INDEX

Page
Butler vs. Frazee, 25 App. D. C., 392 148, 160
Carbine vs. B. & R. R. Co., 61 Vt., 348 132, 160
Carr vs. Grand Trunk Ry., 152 Mich., 138 136
Central R. R. of Ga. vs. Lippman, 110 Ga., 665,

50 L. R. A., 673 32
Christy vs. Farlin, 49 Mich., 319; 15 N. W., 607 71
Clarke vs. Holmes, 7 H. & N., 937 138
Crofford vs. Cathran, 2 Sneed, 492 71
Crowley vs. Pacifie Mills, 148 Mass., 228; 19

N. It., 344 148
Dan. Ch. Pl & Pr., 3608 65, 96
Davidson rs. Cornell, 132 N. Y., 228 143
DeForest vs. Jewett, 88 N. Y., 264 148, 144
DeLuca vs. Hughes, 96 Federal, 923,925 4)
DeYturbide rs. Metropolitan Club, 11 App. D.C.

1SO 159
Drake vs. Auburn City R. Co. (N. Y.), 66 N. F.,

121 138
Dresser’s Employers’ Liability, Sec. SO 4?
Dudley vs. Price’s Adm’r., 10 B. Mon., 84, 88 70
Engine Works vs. Randall, 100 Ind., 293 139
Kylenfeldt rs. Steel Co., 165 TIL, 180: 46 N. 1s,

266 7|
Fallon vs. West End. St. Ry., 171 Mass., 249; 90

N. E., 536 33
Farren vs. Old Colony R. Co., 143 Mass., 197, 200 180
Flatley vs. Railroad Co., 9 Heisk., 280, 237 71
Fleming rs. St. Paul & D. R. Co., 6 N. W., Rep.,

448 133, 139-140, 160

Fletcher vs. Phila. Traction Co., 190 Pa. St., 117 187
Funk vs. St. Paul St. Ry., 61 Minn., 4385; 52 Am.

St., 608; 29 L. R. A., 208 33, 34
Garrett vs. L. & N. R. Co., 235 U.S., 308. 63, 96, 119, 155
Gibson vs. Erie R. Co., 63 N. Y., 449; 20 Am.

Rep., 552 133, 137-138, 143, 144, 160
Gila Valley R. Co. vs. Hall, 282 U.8., 98 124, 141

INDEX vii

Page
Godfrey vs. St. L. Tourist Co., 107 Mo., 193 33
Gould vs. Railway Co., 66 Lowa, 590 r 20, 123, 155, 160
Greenleaf on Evidence, Vol. 2, Sec. 21] 33
Great Northern Ry. Co. rs. Capital Trust Co., U.S.

Adv. Op., 1916, pp. 41, 42 82
Harrison vs. Nixon, 9 Pet., 483 65, 96
Hayden vs. Smithville Mfg. Co., 29 Conn.. 548 144
Hayden vs. Welch, 52 IIL, 183 133
Hayzel vs. Columbia Ry. Co., 19 App. D. C.,

359, 371 14S
Hickey vs. Taaffe, 105 N. Y., 26: 12 N. E.. 286 143
Hughes vs. Ind. Trae. Co (Ind.), 105 NX. BE. , 537 4]
Hurst vs. Detroit City Ry., S4 Mich., 539 65, 77, 95
Hutchison on Carriers, See. 47 333
Illinois Surety Co. vs. Peeler, 240 U. S., 214 78
Jacobs vs. Insurance Co., 86 Lowa. 145; 53 N. W..,

101 ra
Jacobs vs. Southern Ry., 241 U. S., 229 124, 126, 141

148, 150, 154
Jarvis vs. Hiteh, 161 Ind., 217: 67 N. M., 1057 42
Johnson rs. Met. St. ty. sa .. LOA Mo. App., 588 33
Johnson rs. Railroad Co.. 43 Minn., 222 ; ee

‘A., 419 36
Kain vs. Smith, 89 N. Y., 375 144
Kohn vs. MeNulta, 147 U. 8.. 238 145-146. 160
Ladd vs. Brockton St. Ry. Co., 62 N. E.. 730 126
Lavalee rs. Railway Co., 40 Minn... 263: 41 N. W.,

N74 oe)
Lemoine vs. Aldrich, 177 M: ass., 89;58 N. E.. 178 126
Louisville & P. R. Co. vs. Louisville C ty Ht. Co,,2

Duv. (Ky.), 175 10
Lovejoy rs. Railroad Co., 125 Mass.. 79 119. 131
Lundquist ps. Duluth st. Ry. Co., 65 Minn.

387, 67 N. W., 1006 33

MeAdow os. Kansas City W. Ry. Co., 164.8. W..
188; 240 U.S., 51 44, 51

oy
KBE v1 , — —_
MEE TRRALTEE AGS nee EG WOT TLE

Vill INDEX

Page

MeDonald vs. Nebraska, LOL aa 171, 177, 178 SO
VeCGovern vs. Cent. Vt. R. Co., 123 N. y.. 280;

95 N. 1., 373 144
MelLeod rs. Chicago, ete., Ry. Co., 125 Lowa, 270 33
MeLeod rs. N. ¥. C2. & H. R. R. Co., 191 Mass.,

9eq 77 N. EL, 715: 114 Am. st. Rep. 625 126-12s
Michigan Cent. R. s. Vreeland, 227 U. 8., 59 58-60, SO
Minor vs. Mechanics i ank, 1 Pet.. 46 (Yt)
Mohr vs. Lemle, 69 Ala., TSO G9
Mo. K. «& T. R. Co. vs. Wulf, 225 U. 8., 570 7TS-SO
Mondou vs. N. Y.,N.H. & H. Be Ca: 273 0. 8:, ] 7)
Myers rs. Railroad Co., 95 Federal, 406 er ae BP

CG. A., 13¢ 31-132
Naylor rs. Railway Co., 53 Wise., 661; 11 N. W..

24 39

Nelson vs. Ist Nath Bank, 139 Ala., 578: 101

Am. st. Rep., 52. 55 0)
X.Y. C. & St. L. vs. Ostman (Ind.), 45 N. E.,

O52 120-121
New York Cent. & H.R. R. Co. vs. Shirley, 120

N. Y. (Supp.), 192 32
Newcomer vs. Reedy, 9 Gill., 265 76
Newton vs. Allis, 12 Wise., 378 71

Norfolk Trae. Co. vs. Ellington, LOS Va., 249;
ei 3. E:. TH; 10 | A Ee 117 33, 36, 41

Omaha & Couneil Bluffs st. Ry. Co. vs. Inters.
Com. Comm., [91 Fed., 40, 230 U. 324 38, 438 a
48, 49-51, 92
Owen rs. Railroad Co., 1 Lansing, LOS 133
Patillo vs. Allen-West C omm. Co., 131 Fed., 680 0
Perigo rs. Railway Co., 52 Towa, 276 136
Phalman rs. Det. City Ry., 122 Mich., 232 135

Pikesville & E.R. Co. rs. State of Maryland, 8S
Mal., 563: 42 Atl, 214 134-155

Pittsburgh, tL ck Ce 30. 08: sentmiver, zt
Norris, 280 : &

INDEX ix

Page
Power Co. vs. Murphy, 115 Ind., 566; 18 N. E.,

30 123, 160
Railroad Company vs. Campbell, 170 Tl, 1638,

167; 49 N. E., 314 71
Railroad Company vs. Jones, 149 TIL, 361; 37

N. E., 247 71
Railroad Company vs. Smith, 81 Ala., 229, 1

South., 723 71
Railway Company vs. Cox, 145 U. S., 594, 601,

606 71
Railway Company vs. Downey, 40 App. D. C.,

147; 236 U.S., 190 38, 40
Railway Company vs. Ellis, 165 U. S., 150 35
Railway Company vs. Somers, 71 Texas, 700 130
Randall vs. Balto. & O. R. Co., 109 U.S., 478 146
Reardon vs. Balaklala Cons. Copper Co., 193 Fed.,

189 80
Reese vs. Phila. & Reading R. Co., 239 U. S.,

463 121-122, 157
Riley vs. Galveston City Ry. Co., 13 Texas Civ.

App., 247 33
Rock vs. Retsoff Mining Co., 40 N. Y. St. Rep.,

596. 136-137

Ryan vs. Railroad Co. (Mass.), 47 N. E., 877
119, 124, 160
Sams vs. St. L. & Merrimac R. Co., 174 Mo., 53;

’

61 L. R. A., 475; 73 S. W., 686 ....00, 34, 41
Scanlon vs. Boston &e R. Co., 147 Mass., 484:

9 Am. St. Rep., 733; 18 N. E., 209 127, 128
Schulze vs. Fox., 53 Md., 37 75
Seovill vs. Glasner, 79 Mo., 449, 453 71

Seaboard Air Line vs. Horton, 233 U. S.. 492 140-141,

148, 150, 160
Seaboard Air Line vs. Renn., 241 U. S., 290 76
Sicard vs. Davis, 6 Pet., 124 71

ea ney a ee a - »

x INDEX

Page
Southern Pac. R. Co. vs. Seley, 152 U.S., 145.146, 148
Southern R. Co. vs. Crockett, 234 U.S., 725. 141, 148
Spokane, ete., R. Co. vs. United States, 210 Fed.,

ce AG AD SA” SRR Fp na wa ed ACS 44, 45
Spokane, ete., R. Co. vs. Campbell, 217 Fed., 518;

241 U.S., 497 Fase Re, Ne
St. Louis, I. M. & S. R. Co. vs. Craft, 237 U.S.,

648 _.61, 80, 87-89, 98
Stewart vs. Ohio River Co. (W. Va.), 20 S. E.,

922 139
Stewart vs. B. & O. R. Co., 168 U.S., 445... 79

Sullivan vs. Cap. Trae. Co., 34 App. D. C., 358 159

Sweeney vs. Berlin & J. Env. Co., 101 N. Y., 520,
5 N. E., 358, 54 Am. Rep., 722 143, 144-145, 146
Texas & Pac. R. Co. vs. Aldrich, 170 U.S., 665 141-144
148, 160

Texas & P. R. Co. vs. Cox, 145 U.S., 593, 603 79
Thain vs. Old Colony R. Co., 161 Mass., 353; 37

N. E., 309 129, 151
‘Todd vs. Old Colony R. Co., 3 Allen, 18 151
Tuttle vs. Grand Haven & M. Ry., 122 U.S.,

189 128-129, 146-147, 160
Union Pacifie Railway Company vs. Wyler, 154

U. S., 285, 289, 298 71, 72, 80, 83
United States vs. B. & O. S. W. R. Co., 226 U.S.,

14 _ 44, 47, 48, 52
Van de Haar vs. Van Domseler, 56 Lowa, 671, 676;

10 N. W., 227 71
Wash. & G. R. Co. vs. MeDade, 1385 U.S., 570-146, 148
Wells vs. B. C. R. & N. R., 36 Lowa, 520 132
Wharton on Negligence, Sec. 214 133
Whalen vs. Gordon, 95 Federal, 305 70

Whatley rs. Zenida Coal Co., 122 Ala., 118, 26
South, 124 42

DANA OBO em agy

INDEX

Williams vs. Del. L. & W. R. Co., 116 N. Y., 628;

22 N. E., 1117

Willson vs. Rock Creek R. Co., 7 Inters. Com.

Rep., 83
Wilson vs. Lake Shore R. Co., 145 Mich., 509
Wooley vs. Railroad Co., L. R., 2 Exeh. Div., 389
1 Ene. Pl. & Pr., 569, 570
25 Cye, 1308
31 Cye, 413

xl
Page

143

39
136
134

75

69

70

TAO DEA nd a a Nene Sig

FEARING Horiba AS

IN THE

Supreme Court of the United States

OcTOBER ‘TERM, 1016.

No. 826.

\

\

WASHINGTON RAILWAY AND ELECTRIC COM-
PANY, PLAINTIFF IN ERROR AND
PETITIONER,

aforesaid, resulting in the‘death of the said deceased,
has suffered and will in the future suffer great loss
and damage. —

Nir te PRP TOP A Ae in Rpiabls Sm Y SHOE ER

9

It will be observed that these two counts, drawn con
fessedly under the District statute which permits recover)
for pecuniary loss alone, alleged this pecumiary loss as
accruing solely to the father.

The third and fourth counts are substantially similar to
the first and second except that the appellant company is
leged to be

“a common carrier engaged in trade and commerce
in said District and State. owmmg and operating
certain lines of railways in said District and State
propelled by electricity conducted on overhead wires
above the cars whieh overhead wires are upported
by CTOSS Wires attached lo upright posts or poles
planted or placed in the ground on th outside of
each track,”

instead of “a commen carrier of passengers”

gaged. The duty of the appellant is alleged im substantially

likewise en

the same terms, and likewise its breach, to-wit, that

“wholly unmindtful of its duty im the premises, did
negligently, carelessly and ina dangerous manner
plant or place said upright posts or poles along the
outer track of said line too near to the ears and to
the running-board” (hk. p. 6),

The third count alleges that the decedent,

“while in the performance of his duties as atore
said, was hit or struck suddenly with foree and vio
lence on the right side of his head lw

one of said

posts or poles planted too near to the
running-board * * * as aforesaid. to-wit, the
distance of only seventecn inches.”

The fourth count differs from the third only in that it

omits the allegation spectiving that the blow was received

on the side of the head. and me rely alleges generally that
he was struck and thrown from the car

Pee OPS

10

Both the third and fourth counts as originally filed al-
leged that the decedent

“was unmarried, was eighteen years of age, left
surviving him the plaintiff, who is his mother, and
Francis Wm. Scala, who is his father, with whom
he resided, and to whose support he contributed, and
who by reason of the wrongful act, negligence and
carelessness of the defendant * . have sut-
fered and in the future will suffer great loss and
damage,”

and concludes :

“Wherefore the plaintiff savs that by reason of
the premises and in accordance with the statutes in
such case made and provided, the Defendant is lable
for an action of damages and a right of action has
accrued to the plaintiff as personal representative of
said deceased on behalf of and for the benefit of the
said parents of the deceased.” and lays the damages
at $20,000.00.

When these four counts are contrasted it is clear that
the first two are brought under the District: statute and
are for the benefit of the father alone. The clauses alleg-
ing the accrual of the action and resulting damage to the
beneficiary are in the singular number and allege that Fran-
cis Wm. Seala. “as his only next of kin, * * * has suffered
and will in the future suffer great loss and damage,” where-
as the third and fourth counts allege that by reason of the
death the parents “of said deceased fave suffered and will
in the future suffer great loss and damage.” and that “by
reason of the premises and in accordance with the statutes
in such case made and provided,” “a right) of action
has accrued to the plaintiff as the personal representative
of said deceased.”

It will be also observed that neither of these counts as
originally filed contained any allegation of pain or suffer-

.

1]

ing to the decedent as a ground of action, and even as
amended subsequently, as will hereafter be pointed out,
contained no allegation that by reason thereof any cause of
action had ever acerued to the decedent which had sur-
vived under the statute for the benefit of any one, or that
any such claim was to be made the basis of the recovery
sued for,

No demurrer was filed to this declaration: \ plea ot
the general issue was tiled on March 2, 1914, and issue was
joined thereon on April 6, 1914,

On October 20, 1915, after this case had been assigned
for trial, and after the statute had barred an action for
damages to the decedent, the appellee. without objection
from the appellant, was permitted to amend the fourth
count of the declaration by inserting the words “aid cans-
ing him to suffer intense pain and injuries” after the words
“profuse hemorrhages” and before the words “in. direet
consequence whereof the deceased died,” as appears on pave
eight of the Record. This still left the declaration without
any allegation or any attempt to so change the allegations of
the declaration as to assert that a right of action had ac-
crued to the decedent prior to his death, which, under the
Amendment of 1910, was for the first time allowed to sur-
vive to the personal representative of the decedent. ‘Ihe
only assertion of damage sought to be recovered by the
declaration as then amended. still was for the pecumary
injury alone which acerucd to the parents by reason of the
loss of the contribution to the support of the parents which
had resulted from the death.

All of the counts assert the right of action and
claim in the following words ;

“Wherefore the plaintiff savs that by reason ot
the premises and in accordance with the statutes in
such cases made and provided the defendant is lia

ble for an action of damages and a right of action
has accrued to the plaintiff as the personal r presen-

12

tative of said deceased on behalf of and for the bene-
fit of the next of kin” (in the first and second counts,
and ‘on behalf of and for the benefits of the said
and ‘on behalf of and for the benefit of the said
counts) ‘and accordingly bring this suit and claims’
in the first and second counts $10,000, and in the
third and fourth counts ‘the sum of $20,0000 ~

No new pleading was filed to this first amendment, and
no opportunity to plead afforded so far as the record shows.

On October 27, 1915, with the pleadings in this condi-
tion, the trial of this case was commenced.

After the jury was empaneled and sworn to try the
issues between the parties, appellee's counsel stated that
she elected to proceed for the purposes of the trial under
the third and fourth counts of the declaration and the
first and second counts were withdrawn (Ree., 6. 17).

On the completion of the appellee's testimony the ap-
pellant by counsel moved the Court to instruct the jury to
return a verdict in its favor—

(a) Upon the ground that the evidence was not sul-
ficient to maintain the case stated by the appellee inher
declaration ;

(b) ‘That as a matter of law the pole situated thirty
inches from the stanchion under the circumstances shown
in this case was far enough away to relieve the company
from any negligence ;

(c) That the evidence showed the decedent was injured
as the result of a risk assumed, and

‘d) That there was no evidence to sustain any other
assumption but that decedent’ was injured as the result
of losing his foothold on the running-he ard.

But the court overruled the motion, to which action the
appellant duly excepted.

At the conclusion of the entire case the appellant re-
newed its motion to have the court instruct the jury to

13

return a verdict in its favor, which motion the court again
overruled, and the appellant again excepted.

The taking of the evidence was completed on October
28th (Ree. po). After all of the evidence had been con
cluded and all) witnesses discharged, and while the court
was considering the prayers offered by both sides and after
the appellee's counsel had, among others, offered their
prayers “6" and “S” (CR. pp. 62, 63), which authorized a
recovery, for conscious pain and suffering. and after the
court had stated (Oct. 29th) ta counsel for appellee that

“T think vou will have to amend before vou can recover for

pain and suffering” (Ree. p. 68). the court granted the
motion of the appellee for leave to further amend the

declaration by inserting in the fourth count after the words

“resulting in the’ the words “conser pain and suffer

and ni the.” | Rec., p. OS), over the objection «ot appellant's
counsel, upon the ground that it asserted new cause ot
action and one barred by the limitation of the statute giving

the cause of action, and because such amendinent const
tuted a surprise to the appellant who had made no prepara
tion on this question under its right to rely upen the plead
ings (Ree., p. Gs)

| then asked

The appellant excepted to this ruling. and

,
to.

for leave to plead to the amended declaration, which leave

was granted, and then pleaded orally and intermally “Not
Guilty” and “limitations of the statute’: and counsel ft
appellee thereupon orally demurred to the plea of the Stat

ute of Limitations, which demurrer the court sustamed. and

overruled the plea of Imitation and the appellant gam ¢)

cepted.

Thereatte the court settled the pravers tl neler
half of the appellee and appellant. The case was argues
and the court charged the jury, permitting ther el
verdict not only for the pecuniary losses sutfered
decedent, but also for the decedent's conscion in

ld

| ei erdict im

The jury subsequently ret

suffering.

solido for $7,500, and judgment was entered elor

An appeal frem this judgment was taken to the Conrt
of Appeals of the District of Columbia upon assignments
of error to be found in the Record at pages 1 and Tet but
he judgment of the trial court was approved it
and this case is now here upen a writ of eri

dl respects,

te that judy

ment and upon the same assigninents of error, to-wit:
ASSIGNMENTS OF ERROR.

1. The court erre

for the defendant at

i

evidence
» ryny } - ; x
we Phe court erred: mi redusingc t wrect a verdict
fer the defendant at the clusion of all of tl
ae
ev1ace»nce.
3. The court erred in applying the Federal Im-
ers’ Laabilitvw Law to the case stated im the

larntiff’s declaration.

THAT EUE TE
in appleine the Federal Fim

t. The court erred in app (
plan ers’ Liability Law to the pl tiffs case unde
the evidence.

>. The court erred in granting the plamtif leave
te amend her declaration after all the evidence ha:
heen completed so as to mut a recovery by the
plaintit for consetots yl sarite

6. The court erred in refusing the detend

int a continuance of the cas te ‘rnutting said
amendment.

~. The court erred in sustamine the plaintiff
demurre) to t defen its pl r tine St Liste !
led by Jenave Peowinge sand amen

Limitations — fil

ment.

S. The court erred mm crantinge the plamutts
praver No. 3-A,

%. The court
praver No, 4.

10. The court erred ‘anting the plaintiff’.

prayer No, 5.

11. The court erred in granting the plaintiff's
prayer No. 6.

12. The court erred in granting the plaintiff's
prayer No. 7.

13. The court erred in’ granting the plaintiff's
praver No. 8.

14. The court erred in refusing defendant's prayer
No. |

15. The court erred in refusing defendant's praver
No. IITA.

16. The court erred in refusing defendant's praver

No. IV.

1¢. The court erred in refusing defendant’s prayer
No. VII.

18. The court erred in refusing defendant’s piayer
No. EN,

19. The court erred in refusing defendant's prayer
No. X.

20. The court erred in refusing de“endant’s praver
No. XII.

21. The court erred in) permitting the jury to
assess damages for conscious pain and suffering
under the declaration as amended more than two
vears after the right of action accrued. °

22. The court erred in overruling the defendant's
motion for a new trial and entering judgment on the
verdict in favor of the plaintiff.

ERRORS ASSIGNED ON PETITION FOR WRIT
OF CERTIORARI.

It is also here upon a petition for a writ of certiorari in
which substantially the same objections are briefly sum
marized as follows:

1. That the defendant was not a common carrier
by railroad within the meaning of the Federal lm-
plovers’ Liability Law of 190s,

2. The entire absence of any negligence on its
part.

3. The death of decedent was caused either by his
own negligence or

aie

16

4. As the result of an accident, to-wit, his losing
his footing while fassing along the running-board.

5. That the risk of such injury was assumed.

6. That as to the conscious pain and suffering—

PES . °

(a) The evidence did not show that decedent had
undergone conscious pain and suffering:

(b) The Statute of Limitations barred such
claim before the declaration asserting it was amend-
ed,

THE ERRORS NOW RELIED ON ARE AS
FOLLOWS:

The evidence shows the appellant company not to be
“a common carrier engaged in trade and commerce” in
the District of Columbia and State of Maryland, as
alleged in the declaration, within the meaning of the
Federal Employers’ Liability Law of 1908.

This affirmative rests upon the testimony of Mrs. ‘Tarbell
alone, who testified that she lived along this line some time
back (Rec., p. 19):

QO. Do vou know whether they haul freight on
this line for people going up along there? A. Yes.
(Rec., p. 22.)

Mr. Geo. G. Whitney, Chief Clerk of the Washington
Railway and Electrie Company, and famikar with tts busi-
ness, testified (Ree. p. 55), that the Washington Railway amt
Mlectric Company is net engaged in hauling freight for the
public on the Glen Echo or Cabin John Bridge line and does
not publish tariffs with the Interstate Commerce Commis-
sion or holds itself out to do any such business to his
knowledge, and that he would have knowledge tf they did so
Upon being cross-examined he testified further as follows:

O. You say it does not haul anything but pas-
sengers on that line: it does not haul supplies for

17

people up there at times? A. I could not say it does
not haul any freight, but it does not haul any for
the public.

Q. But it does haul things ap there for people liv-
ing on that car line on its cars? A, People living on
that line? No, sir.

QO. For anybody up there? A. Not for the public.

O. What is that? A. It does not haul any freight
for the public.

QO. Who does it haul for? A. It hauls freight for
the Glen Echo Park Company.

QO. For the Glen Echo Park Company? A. Yes,
sir.

And upon being further examined on redirect examina-

tion:

Q. Does the company receive any compensation
for that service? A. It does not.

And upon being re-cross-examined :

(). It receives all the fares of people going to
Glen Echo Park, does it not? A. Of course that is
true; the railrcad company gets the fares.

©. In consideration of that it does not make any
special charge for the freight hauled up there: is
that right? A. T would not say.

QO. You would not say, but it is a fact. is it not?
A. No, sir.

QO. They own that right of Way up there. the
whole line, don't they? A. T think so. (Rec. p. 46.)

The question is raised by the action of the court in
Gy the appellee's prayers Nos. 3--\, 4, 5, 6. 7.8 (Ree
pp. G1, 62,63, 67), based upon the Federal Employers’ Li
ic Law, and the action of the court. in refusing the
appellant's praver No. VIL (Ree., p. 65). and by assign
ments of error Nos. 1,2. 4, 14, (Ree., p. 15).

SO41—2

18

Appellant's prayer No. VIE reads as follows (Ree., p. 69):

“The court instructs the jury that there was no
duty on the defendant company to anticipate a ney
ligent or unusual manner of performing his duty on
the part of the servant, or to render the servant sate
from injuries resulting from his negligent method
of performing his duty or from unforeseen accidents
or occurrences.’

I.

Even if the evidence was sufficient to justify a finding
on the part of the jury that the appellant company was a
common carrier of passengers within the meaning of the
Federal Employers’ Liability Law, the court erred in
directing the jury as a matter of law that the law did

apply.

This question is raised by the appellant's exceptions t
the appellee's prayers Nos. 4.5. 6. 7. 5. all of which are
based upon the Federal Employers’ Liability Law (Ree.
pp. 61, 62, 65), and read as follows:

No. 4.

“The jury are instructed that, if they find from the
evidence that the defendant company was guilty of
negligence, and the deceased was guilty of contribu-
tory negligence, the \et of Congress under which
this suit was brought provides that such contributor)
negligence is not to defeat the pliuntils right to a
recovery altogether, but the damages shall be dinin-
ished by the jury in proportion to the amount of
negligence attribut. able to the deceased. So. if you
reach that point in vour deliberations where vou tind
it necessary to consider the defense of contributor)
negligence, the negligence of the deceased is not a
bar to plaintiff's right to recover in this suit, but it

19

goes by way of diminution of damages in proportion
to his negligence, as compared with the combined
negligence of the deceased and the defendant. In
other words, if the jury find that the defendant was
guilty of negligence in this case, and that the de-
ceased was guilty of coutributory negligence, the
plaintiff has a right to recover damages, but from
these damages the jury should exclude in its verdict
a proportional part of the damages corresponding to
the deceased's contribution to the total negligence.
The jury are also instructed that the burden of prov-
ing the contributory negligence of the deceased is
on the defendant, and that before the jury are justi-
hed in diminishing the di unages on account of con-
tributory negligence of deceased, they must first find
that the contributory negligence of deceased is es-
tablished by a preponderance of. the evidence.”

No. 5.

“On the question of assumption of risk, the jury
are instructed that there can be no recovery in this
case if the deceased assumed the risk of injury. .\s-
sumption of risk is not the same as contributory
negligence. Contributory negligence involves the
notion of some fault or breach of duty on the part
of the employe. On the other hand. the assumption
of risk, even though the risk be obvious, may be free
from any suggestion of fault or negligence on the
part of the employe. And, in this ease. you are in
structed that the deceased only assumed such danvers
as were normally and necessarily incident to his oc
cupation ; but that he did not assume risks of another
sort, net naturally incident to his occupation and
arising out of any failure of the defendant company
to exercise due care with respect to placing the ‘Se
ley pole a safe distance from the running-board «
the car. Risks of this sort, arising out of anv negti-
gence of the defendant. the jury would not be justi
fied in finding were assumed by the deceased, unless
they find first that any negligence of the defendant
in placing that particular pole the distance it was

20

from the running-board, and also the risk of danger
therefrom to a person passing while on that running-
board, under the circumstances of this case, were
both alike known to the deceased, or were both so
obvious that an ordinarily prudent person under the
circumstances would have observed and appreciated
it.”

No. 6.

“The jury are instructed that. if they find in favor
of the plaintiff, then in assessing the amount of dam-
ages for the benefit of the mother and father, they
may assess these damages beth on account of any
conscious pain and suffering and agony of their son
from the time of the injury to the time of his death,
and also for any loss and damage resulting to them
financially by reason of the wrongful death of their
son. In other words, the plaintif. if vou tnd in her
favor, is entitled to have the damages for the benefit
of the mother and father assessed by vou on recount
of two claims which are quite distinct. no part of
either being embraced in the other. One is for the
wrong to the injured person, the son. and is con-
fined to his personal loss and suffering before he
died, while the other is for the wrong to the bene-
ficiaries, his mother and father, and is confined
to their pecuniary loss through his death. One he-
gins where the other ends. . Yoru cannot. however,
assess the total ameunt of damages for both claims
to exceed the sum of $20,000. and vou need not, if
you find a verdict for the plaintiff, render a separate
verdict for each of the two claims, but one amount,
not exceeding $20,000, to embrace the amounts found
by vou for both claims.

No. 7.

The jury are instructed that. if they find in favor
of the plaintiff, then tn assessing the damages for
the benefit of the mother and father resulting to
them financially by reason of the wrongful death of

21

their son (which damages are separate from any
damages you may find for the son’s pain and suffer-
ing before he died), you are entitled to take into
consideration the relationship between them of par-
ents and son, as a proper circumstance for considera-
tion in computing these damages, which are not de-
pendent upon any legal liability of the son to support
his parents. The jury may also take into considera-
tion any testimony concerning the personal qualities
of the son and the interest he took in his mother and
father, and any testimony concerning the care, at-
tention, consideration, maintenance and support,
Which he reasonably might have been expected to
give to his parents, but to include the pecuniary
value of all these in the damages. In other words.
the jury are entitled to take into consideration in as-
sessing the damages on this clajm, which is separate
from the claim for the son's suffering and pain be-
fore he dies, only such losses as the jury may find
result to the mother and father because they have
been deprived of a reasonable expectation of pe-
cunary benetits by the wrongful death of their son.
and the fact that the son was not legally liable at
the time of his death, and would not have been
legally liable atter he attained his majority to sup-
port his mother and father, cannot defeat their claim
for damages.
No. 8.

“The jury ave instructed that, if they find in favor
of the plaintiff. then in assessing the damages for
the benefit of the mother and father for the son's
personal loss and suffering before he died, which are
separate from any damages they may find resulting
to them financially by reason of the death of their
son, vou are entitled to take into consideration anv
testimony in the case concerning any conscious pain
and suffering endured by the son in the period be-
tween injury and death. In other words, if the jury
find in favor of the plaintiff, then, in addition to any
damages tor pecuniary loss to the parents, the plain-

tiff is entitled to recover damages for the benefit of
the mother and father for any conscious pain and
agony which the jury may find their son endured in
the period between his injury and death: and, in eom-
puting those damages for the benefit of the mother
and father on account of any suffering of the son,
those damages are to be measured by the jury not by
che suffering of the mother and father in contemplat-
ing or grieving over any pain their son may have sut-
fered, but those damages are to be measured by
the jury from the view point of the son: that is to
say, the jury may compute such damages as will be
reasonably compensatory to the son for his conscious
pain and agony which the fury may find he suffered
in the period between injury and death, and the fact
that that pertod may have been brief does not, of
itself, defeat the claim for damages on account of
the son's conscious suffering.

TTI.

The court erred in permitting the pleading to be
amended so as to permit recovery for conscious pain and
suffering after all of the evidence had been concluded,
all of the witnesses on each side discharged, and while
the settlement of the prayers was under discussion.

This amendment with the consequent direction to. the
jury to allow for pain and suffering should not have been
allowed—

(a) Beeause it introduced a new cause of action.

(b) Because the right of compensation for conscious pain
and suffering, if it ever existed, had been barred by the
Statute of Limitations before the amendment :

(c) Because there was no sufficient evidence to warrant
the submission of that question to the jury;

() Because even after the amendment the claim for

conscious pain and suffering was not sufficiently asserted.

ie aa

This question was raised by the exception to the action
of the court in permitting the amendment (Rec., pp. 67,
68), and is covered by the fifth assignment of error

(Rec., p. 15).

IV.

The Court Erred in Overruling the Motion of the Appel-
lant for a Continuance of the Case after the
Amendment had been Allowed.

This question is raised by the exception of the appellant
to the action of the court in overruling its motion for a
continuance, notwithstandimg the statement of the court
that “TP will frankly say that if | had been reading that
declaration from the standpoint of the defendant | would
not have suspected that it was the intention to recover
for the conscious pain and suffering of this man after he
lived, af he lived an hour atter his injuries.”

This question is raised by the exception to the ruling
of the court (Ree. p. 65), and by the sixth assignment

of error (Ree. p. 15).

¥,

The Court Erred in Sustaining the Appellee’s De-
murrer to the Appellant’s Plea of the
Statute of Limitations.

This question is raised by the exception to the action
- 4 . . . )
of the court in sustaining said demurrer (Ree., p. 68),

and by the seventh assignment of error (Ree., p. 13).

>

The Court Erred in Overruling the Appellant’s Motion
to Direct a Verdict in Its Favor at the Conclusion
of the Appellee’s Case and at the Con-
clusion of the Entire Evidence.

This question is raised by the exception to the action
of the court in overruling both of these motions (RKec..
pp. 41, 60). It is also covered by assignments of error

1,2 and 14 (Rec., p. 13).

VIL.

The Court Erred in Granting the Appellee’s Prayer
No. 3-A, Reading as Follows:

“The jury are instructed that the law imposes
upon every employer the duty of exercising reason-
able care in prividing a place reasonably safe and
secure in which employes may carry on and_ per-

- form their respective duties, and that if the jury
find from the evidence in this case that the defend-
ant company located and placed the pole, to wit, Ne.
187, supporting the trolley wire of the defendant
company, dangerously close to its tracks and passing
cars, and further find that the deceased conductor
was knocked from the running-board of the car hy
the said pole and thereby injured and killed, then
their verdict should be for the plaintiff, unless such
danger from the location of said pole, 1f any, was
so obvious that an ordinarily prudent person under
the circumstances would have appreciated it” (Rec.
p. 67).

This is raised by the appellant's exception to said
prayer (Ree. p. 68), and assignments of error 8 (Ree.

25

VII.

The Court Erred in Stating the Doctrine of Assumption
of Risk Under the Federal Employers’ Liability
Law in the Appellee’s Prayers, Nos. 3-A
and 5 ¢(Rec., pp. 61, 67).

The question is raised by the exception of the appellant
to the granting of these prayers (Rec., p. 66), and by the
eighth and tenth assignments of error (R., p. 13).

IX.

The Court Erred in Granting the Appellee’s Prayers
Nos. 6, 7, 8.

The propriety of these rulings of the court is raised
by the appellant's exceptions to the granting of these
prayers (Rec., p. 66), and by assignments of error Nos.
11, 12, 13, and are set out at length, ante, pp. 20-22.

X.

The Court Erred in Refusing the Appellant’s Prayer
No. III-A (Rec., p. 67), which read as follows:

‘

“If the jury believe from the evidence that the
plaintiff's decedent received his injury by reason of
failure to grasp one of the stanchions or losing his
footing as he passed along the running-board, there-
by protruding his body further than usual beyond
the outside line of the car and thus causing his body
to come in contact with a trolley pole, their verdict
should be for defendant.”

The question is raised by the appellant’s exception to
the ruling of the court in refusing this prayer (Rec., p.
66, and also by assignment of error No. 15 (Rece., p. 13).

The Court Erred in Refusing the Appellant’s Prayer
No. IV (Rec., p. 64).

This prayer reads as follows:

“The court instructs the jury that some employ-
ments are necessarily traught with danger to. the
workmen engaged therein, and that such dangers
as are ordinarily incident to the employment as 1
is actually and ordinarily conducted and are obvious
to a man exercising ordinary care for his own satety
are presumed to be assumed by the employee, wheth-
er he was actually aware of them or not: and even
as to dangers and risks not necessarily incident to
the occupation but which may arise out of the fail-
ure of the emplover to exercise due care with re
spect to providing a safe place to work and which
are obvious to ordinary observation an employee, as
soon as he becomes fanuhiar with the place of hts
work and the conditions surrounding the same, with
out objection, is likewise presumed to have as
sumed."

The question is raised by the appellant's exception to
the action of the court in refusing this praver (Ree... p

u6). and by the sixteenth asstgument of error.

XI.

The Court Erred in Refusing the Appellant's ‘Prayer
No. VII, as Follows:

“The court instructs the jury that there was no
duty on the defendant company to anticipate a negh
gent or unusual manner of performing his duty on
the part of the servant, or to render the servant sate
from injuries resulting from his negligent method
of performing his duty or from unforeseen ace
dents or occurrences.”

24

This question is raised by the appellant's exception to
this ruling (Rec., p. 66), and is the subject of the seven-
teenth assignment of error.

XIII.

The Court Erred in Refusing the Appellant’s Prayer
No. IX.

This prayer reads as follows (Rec., 65):

“The court instructs the jury that even though
they believe from the evidence that the defendant
was negligent in placing its trolley poles in dan-
gerous proximity to its tracks, vet, if the jury fur-
ther believe from the evidence that the location of
the said trolley poles was known to the plaintiff's
decedent, or that he had been working as a con-
ductor on the cars of the defendant company pass-
ing those trolley poles at frequent intervals for sev-
eral months, and that the poles had been located at
the same place for many years prior to the accident
and that the decedent had failed to make complaint
or objection on account of the location of said trol-
ley poles, then he assumed the risk of danger from
their location, if there was any danger in it, and
the jury should return their verdict for the defend-
ant.”

This question is raised by the appellant's exception to
the action of the court in refusing said prayer ( Rec., p. 64).
and is made the subject of the eighteenth assignment of
error,

XIV.

The Court Erred in Refusing the Appellant’s Prayer
No. X.
This prayer reads as follows:
“Even though the jury may believe from the evi-
dence that the Plaintiff is entitled to a recovery as
the result of negligence on the part of the Defend-

2s

ant, still the jury has no right to allow the Plaintiff
speculative, imaginary or conjectural damages, or
any damages which are not fairly and satisfactorily
established by a preponderance of the evidence, to
be justly compensatory for pecuniary injuries actu-
ally inflicted on and suffered by the next of kin of
the decedent as a direct and proximate result of the
decedent's death” (Ree., p. 66).

The question is raised by the appellant’s exception to the

refusal of the court to grant this prayer (Rec., p. 64), and
is made the subject of the nineteenth assignment of error.

PRELIMINARY.

Preliminary to a discussion of these points and by way
of anticipating possible objections and discussion of the
appellee. we would say that in the brief filed by the learned
counsel for appellee in the Court of \ppeals that they de-
voted at least one-half of their 137-page brief to technical
discussions as to the sufficiency of the various exceptions in
the trial court and of the assignments of error filed thereon
to support, under the rules of that court, the points made.

\ complete answer to any attempt to renew these objec-
tions here is to say that the Court of .\ppeals in its opinion
entirely ignored all of said objections, none of which in fact
were well taken, and passed upon all of the assignments on
their merits, thus holding them sufficient under its rules.
This, as we understand it. precludes the necessity for giving
any consideration here to these pure technicalities.

DISCUSSION OF POINTS OF LAW AND FACT.

The points now relied on all involve the construction and
application to the facts of this case of the Emplovers’ Lia-
bility Law of 1908 as amended ; whether the present action
can be maintained only under Sections 1, 3, 4. 5 and 9 of

——

29

the act, and hence involves the construction of a general
statute of the United States. as has been demonstrated in
the brief filed herein by the appellant in opposition to the
motion to dismiss, or whether it may be maintained un-
der Section 2 alone unaided by any other section, and
hence involves the construction of a local statute only.

They may best be discussed under four general headings
and subdivided as follows:

I. The application of the Federal Employers’ Liability
Law of 1908 to the case stated and to the case
proved (Assignments 1, 2, 3, 4, 14):

(a) The appellant company as a matter of law
cannot under the evidence be held to be a com-
mon carrier by railroad within the meaning oi
Section 1 of the Act of Congress of April 22,
1908 (Assignments 3, 4).

(b) At the most that question was one of fact
which should have been submitted to the jury
and not determined for the jury by peremp-
tory instructions as was done by granting ap-
pellee’s prayers Nos. 4, 5, 6, 7, 8, all of which
assumed as matter of law the appellant to be
a common carrier by railroad within the mean-
ing of the Federal Statute, and as such applied
to the case (Assignments 9, 10, 11, 12, 13).

II. The action of the trial court as affirmed by the Court
of Appeals was erroneous in respect to the question
of recovery for conscious pain and suffering (As
signments 4, 5, 6, 7, 11, 12, 13, 19):

(a) Because after all the evidence had been
taken and alli witnesses discharged, the court
undertook to allow the pleading to be so
amended as to introduce a new cause of action
(Assignment 5);

(b) Which was already barred by limitation of
the statute which permitted the cause of ac-
tion to survive (Assignments 5, 21):

(2) There was no sufficient evidence before the
jury to warrant a recovery therefor even if
properly pleaded (Assignments 11, 13, 19);

30

(d) The declaration even as amended failed to
assert sufficiently a claim for such pain and
suffering (Assignments 3, 19) ;

(e) The allowance of the amendment operated
a surprise and the appellant's motion for a con.
tinuance should have been granted (Assign-
ments 5, 6) ;

(f) The appellee’s demurrer to the appellant's
plea of the statute of limitations should not
have been sustained (Assignment 7).

III. There was no evidence of negligence on the part of
the appellant resulting proximately in the death of
appellee’s decedent. Hence the court erred in
failing to direct a verdict for appellant at the con-
clusion of the appellee’s evidence and again at the
conclusion of all the evidence (Assignments 1, 2, 3,
4, 8, 14):

(a) Because the appellee’s own evidence uncon-
tradicted showed that the decedent came in
contact with the pole after he lost his footing,
and that he did not lose his footing because
the pole struck him;

(b) Because the line of poles was not negli-
gently placed dangerously near the tracks as
alleged in the declaration;

(c) It is not negligence for an electric railway
to maintain permanent and visible structures
in close proximity to its tracks.

(d) Because whatever dangers resulted from
the proximity of the poles to the track was in-
herent and obvious; the decedent had ample
opportunity to observe and appreciate the
danger, and therefore assumed the risks re-
sulting therefrom.

IV. Even if there was evidence on any of the above
points to sustain a finding of the jury against the
appellant, such evidence merely raised disputed
questions of fact thereon and the court erred in in-
structing the jury peremptory in regard thereto in
the following respects:

(a) In granting appellee’s prayers 3-A and 5,

a

and in refusing appellant’s prayers III-A, VIT
and IX. (Assignments 8, 10, 15, 17, 18.)

(b) In refusing appellant’s prayer IV in respect
to the facts from which both knowledge and
assumption of risks are assumed. (Assign-

ment 16.)

The Court Erred in Refusing Appellant’s Prayer X.
3.

The application of the Federal Employer's Liability Law
of 1908 to the case stated and‘to the case proved
(Assignments 1, 2, 3, 4, 14):

(a) The appellant as a matter of law cannot be
held to be a common carrier by railroad with-
in the meaning of Section 1 of the Act of Con-
gress of April 22, 1908 (Assignments 3, 4):
The charter of this appellant (29 Stats. at L.. 246), which

was mtroduced in evidence by the appellee (Ree. p. 33),

expressly prohibits the appellant company from: operating

steam cars, locomotives of passengers or other cars for steam

railways. ‘The evidence already set forth Cante., pp. 10-17)

as Well as its charter, show that it was chartered as and only

did the business of a street railway company, and carried

no freight.

The counts of the declaration drawn under the District
statute allowing actions for death resulting froma wrong-
ful act having been withdrawn, left only the two counts
drawn under the Federal Mmplovers’ Liability Law stand-
nig. and every praver granted at the instance of the appellee
iscmaimtamsable only upon the theory that the Federal lm

plovers’ Laabthtiv Law is applicable to the facts shown. ft
is therefore plain that if this act is not applicable to the
ease made out that the judgment must be reversed.

)

The position of the appellant i this respect is (ay that it
is vot a commen carrier, and (bs that the Federal [Em-
plovers’ Lvcbility Law 1s diet appheable loo electrically Oper-

ated street and suburban railways

32

Section 1 of the act of 1908 applies only to “common car-
riers by railroad.”

In N. Y. C.& H.R. R. R. Co. vs. Shirley, 120 N.Y.
(Supp. ), 192, it is held that common carriers are only car-
riers of property unless from the context it appears that
carriers of persons are intended, and that when carriers of
persons are spoken of they are usually designated as “com-
mon carriers of persons” or “passenger carriers,” and it was
held in that case that an act providing that no preference
for the transportation of the business of a common carrier
upon the cars, in the depots or upon the grounds shall be
granted, that the act must be limited to carriers of freight,
and hence did not include hackmen.

The Court of Appeals of New York in Brewer vs.. The
Railway Company, 45 Hun, 595, 26 N. E., 325, 11 L.
R. A., 485, 21 Am. State, 647, said:

“It is true that a carrier of persons is not sub-
jected by law to the obligations of a ‘common’ car-
rier in the strict sense of the term applicable to it.”

In Central R. R. of Georgia vs. Lippman, 110 Ga., 665;
50 L. R. A., 673, the construction of Section 2276 of the
Civil Code of that State was involved. It reads as follows:

“A common carrier can not limit his legal lia-
bility by any notice given either by publication or
by entry on receipts given or tickets sold. He may
make an express contract and will then be governed
thereby.”

The defendant sold passenger tickets expressly limiting
its liability. The court said:

“Undoubtedly if a carrier of passengers is a com-
mon carrier within the contemplation of this section
of the code, and if the term ‘legal lability’ refers to
the legal obligation of carriers of passengers to exer-

33

cise extraordinary diligence to protect the lives of
persons and passengers, then while the carrier may
not linut such liability by notice, he may do so by an
express contract. * * * It is significant that
under this section the carrier who may limit his legal
liability by express contract is denominated ‘a con
mon carrier.” * * * The term ‘common carrier’
did not at the common law embrace a carrier of pas-
sengers, neither does it under the definition found in
the Code in connection with Section 2276."

Bouvier, Hutchison on Carriers, Sec. 47, and Greenleaf
on Evidence, Vol. 2, Sec. 211, all define common carriers as
“carriers of personal property purely.” and that carriers of
passengers are denominated “common. carriers of passen-
gers” or “passenger carriers.”

Assuming, however, that a suburban street railway
company operated by electricity and carrying passengers only
is a common carrier, the question still remains: Is it a “rail
road” within the meaning of the Act of April 22, 1908 ?

That laws, such as the Federal mployers’ Liability Law,
are construed strictly is shown by the rulings of courts og
last resort, of Towa in’ MeLeod ws. Chicago, ete., Railway
Co. 125 Lowa, 270: Massachusetts in Fallon vs. West End
Street Railway Company, 171 Mass.. 249, 50 N. E.. ane:
Minnesota in Lundquist vs. Duluth Street Ry. Co., 65 Minn.
387, 67 NW. 1006; Funk vs. St. Paul Street Ry. Co. 61
Minn., 435, 52 Am. St., 608, 29 L. R. A., 208: Missouri in
Sams vs. St. Louis & Merrimac R. R. Co., 174 Mo.. 53. 61
R.A 475: Godfrey vs. St. Louis Tourist Co., 107 Mo.
5, and Johnson vs. Metropolitan Street Railway Com-
pany. 104 Mo. Appeals. 588: Texas in Riley vs. The Gal-
veston City Railway Co.. 13 Texas Civ. App.. 247, and Vir-
ginia in Norfolk ‘Traction vs. Ellington, 108 Va., 245. all
construing fellow servant laws similar in effect and purpase
to the Federal Employers’ Liability Law as applying purely
to steam railroads and not to street railways or suburban

8041-3

i? SS es

Paget CCea! Bawa yi toe SER

bid ace

oo

ot

railways operated by electricity. In Funk vs. Railroad Com-
pany, 61 Minn., 435, 29 L. R. .\., 208, mentioned above,
the law construed applied to “every railroad corporation.”
The court said:

“Perhaps it may be conceded that, technically
speaking, the term railroad would include a_ street
railway so far as its roadbed was made of iron or
steel rails for wheels of cars to run upon * *

“When the words of a statute are not explicit the
intention is to be collected from the context, from the
oceasion and necessity of law, from the mischief felt.
and the object and remedy in view. * * * Can
it be fairly and reasonably held that it was a legis-
lative intent to apply the term railroad to street r -ail-
ways? It is a matter of common knowledge that
street cars operated by cable or clectricity are more
readily managed than those operated by steam.
where long passenger and freight trains, with their
weight and momentum, are not so easily controlled.
A street car is generally run separately, rarely with
more than two or three coupled together, and there

° is but little danger of collision. They do not run
so rapidly, their movements are easily and quickl
rg ked, and the roadbeds are constructed upon level

r graded streets, without deep cuts, and generally
Votaed Nor do street railways carry freight. The
greatest railroad hazard and danger of personal ia-
jury to railroad employes arise from operating their
trains. There is no such danger in operating street
railways, whatever may be their motive power, be-
cause they do not carry freight. [specially is the
danger in coupling their cars entirely absent.

The court concludes that street railways, though within
the technical meaning of the terms used, were not within
the mischief felt which resulted in the passage of the law
and therefore were not within the legislative intent.

In Sams vs. The Railway Company, 174 Mo. 53, 61 DL.
R. A. 475, the statute applied to “every railroad corpora-

35

tion.” The defendant had been incorporated as an
ordinary railroad company with the power of eminent
domain. It was shown that it had exercised the right
of eminent domain to acquire part of its railway; that its
road in the city was in the city streets, and of the same
character as ordinary — street railways, while in the
country it was partly of that character and partly of the
character of the ordinary steam railroads, and the cars
were moved by electricity with trolleys, and for carry-
ing passengers only, except that the defendant had one
car propelled as its passenger cars were, which was used
to carry the United States mails and one-half of it was
arranged to carry freight or express packages and was so
used. The court said :

“It is the peculiar nature of the hazard incident
to the railroad business that makes the founda-
tion of this statute. Reference to this peculiarity
runs through all the cases sustaining the validity
of the fellow-servants statutes,

“In Railway Company vs. Ellis, 163 U.S. 150,
Mr. Justice Brewer said: “The business in which
they are engaged is of a peculirly dangerous na-
ture and the liability in the exercise of its police
power may justly require many things to be done
by them in order to secure life and property.”

“In Lavalee ys, Railway Company, 40° Minn.
263, 41 N. W., 974. the court said: “The fre-
queney and magnitude of the dangers in) which
those empioyved in operating railroads are exposed ;
the difficulty, sometimes Impossibility, of escaping
from them. with any amount of care, when they
come; the fact that a great number of men are
emploved, cooperating in the same work, so that
ho one of them can know all the others, their com-.
peteney, skill, and care, so that he Mav not be said
to voluntarily assume the risk arising from the want
of skill or care by any one of the number. are suf-
ficient reasons for applying a rule of lability on
the part of the employer to the employe so em-

Bie)

ployed, different from that ordinarily applied be-
tween master and servant.’

But no reason can be suggested why such dif-
ference should be founded, not on the character of
the employment, nor of the danger to which those
employed are exposed, but on the character only
of the employer.

“In Johnson ys. ‘The Railroad Company, 15
Minn., 222, 8 L. R.A. 419, where the court was
considering what employes were within the scope
of the fellow-servants statute, said : “Therefore,
after, mature consideration, our conclusion is that
if any limitation is to be placed by the courts
upon the application of this statute, and upon con-
stitutional grounds there must be. the only one
which will furnish any definite or logical rule is to
hold that it only applies to those employes who are
exposed to the peculiar hazards incident to the use
and operation of railroads and whose injuries are
the result of such dangers... Men engaged
in the operation of street railways are exposed to
hazards, but nof to the peculiar hazards which dis-
tinguish men engaged in operating s/eam railroads
and which have made them a class for special legis-
lation.”

In Norfolk Traction Company vs. Ellington, 108) Vir-
ginia, 245, the Court of \ppeatls construed the Virginia
Fellow-servant Act, sec. 162, Virginia Constitution, which
applied to “every employe of a railroad company engaged
in the physical construction and repair or maintenance of
its roadbed 2...) oor in any work in or upon a car
or engine standing upon a track, or in the physical opera-
tion of a train, car, engine, or switeh, or in any service
requiring his presence upon a train, car, or engine,” and
said :

“If, therefore, it be conceded that the word
‘railroad’ in its broadest: signification, would in-
clude both street railways and steam railroads,

ent tlie

37

nevertheless a critical examination of the lan-
guage of section 1620 and other portions of the
constitution and laws of the State in part materia,
aided by the history and spirit of. the provision,
lead to the conelusion that the words ‘railroad
company” as employed in that section, were only in-
tended to apply to railroads proper, or commercial
railroads.”

The Virginia court gives an enlightening comparison
showing the “inherent dangers of the respective businesses
of railroad companies proper and street railwa} companies”
as illustrated by statistics taken from the reports of the
State Corporation Commission of Virginia, and says:

,

In 1903 on steam railroads out of a total of
289 persons killed or injured by accident, 2319
were employes. On electric railways out of a total
of 493 persons killed or injured by accident, 9 were
employes. In 1904, on steam railroads, out of a
total of 2781 persons killed or injured by accidents,
#264 were employes. On electric railways out of
a total of 206 persons killed or injured by accidents,
were employes. In 1905 on steam railroads out
of a total of 1812 persons killed or injured by acer-
dent, 1353 were employes. On electric railways out
of a total of 230 persons killed or injured by acci-
dent, 19 were employes. And in’ 1906) on steam
railroads out of a total of 2277 persons killed or
injured by accident, 17735 were employes. On elec-
tric railways out of a total of 203 persons killed or
injured by accident, 27 were employes, * * * Jf
is also worthy of notice that While tite dockets of
this court ahkound with fellow-servant cases occur-
ring on steam railroads we recall but one instance
of the kind in connection with electric railways.”

These statistics illustrate Most aptly the contention that
the risk of injury to employes upon. street railways could
in no legitimate Way have figured in the public sentiment

3s

which resulted in the enactment of the Federal Empl vers’
dability Law, either of 1906 or T90S.

Practically the same question here involved was pre-
sented to the Court of Appeals in the case of Rail-
way Company vs. Downey, #0 App. D. C.. 147, which
case arose under the act of 1906 and in which that
court overruled the contention now being made as to
that act, upon two grounds; first, “upon the uncon-
tradicted testimony” in that case that “the defendant. ts
both a carrier of passengers and freight “* second, the
language quoted from the Second Employers’ Liability
Case upholding the constitutionality of the law of 1908
that “the term ‘commerce’ comprehends more than the mere
interchange of goods. It embraces commercial intercourse
“yall its branches, including the transportation of passengers
and property by common carriers. whether carried on by
land or water.”

The act of 1906 applied to “every common carrier ¢n-
eaged in trade or commerce,” while the present act 1s con-
fned to common carriers by railroad “while engaged in
commerce.

But it is submitted with very great respect that that quota-
tion does not justify the conclusion that every one engaged in
commerce is subject to the liabilities of either the act of
1906 or the present act, and that in order to come within
the provisions of the act of 1908 there must not only be an
engaging m1 commerce but there must be an engaging in
commerce by a common carrier; that that carrier must be a
carrier by railroad, and that a mere carrier of passengers hy
street railway under the authorities first above cited 1s not
such a common carrier.

That court also. in support of its conclusion, cited the
case of Omaha & Council Bluff St. Ry. vs. Interstate Com-
merce Commission, 191 Fed., 40. Since then the case so
cited was brought to this court and reversed in 230 U.S.
324. Mr. Justice Lamar delivered the opinion of the court

3y)

On page 334, referring to the original Interstate Com-
merce Act, he said:

“The statute in terms applies to carriers engaged
In transportation of Passengers or property by rail.
road.”’

It will be seen that this is very different from the terms
used in the Federal Kmployers’ Liability Law of 1908,
Which applies not to “common carriers whether engaged in
the transportation of Passengers or property,” but is con-
fined to “common carriers by railroad.”

Mr. Justice Lamar then mtinues :

“But in iss? that word (railroad) had no fixed
and accurate meaning for there was then as Now
“(ste)” a contlict in the decisions of the state courts
as to whether street railroads were embraced within
the provisions of a statute giving rights or Imposing
burdens on rai/roaids. The present record
discloses a similar disagreement in Federal tribunals.
For not only did the « miunerce court and the cireuit
court differ, but it appears that the members of the
commission were divided on the subject when this
case was decided and also when the question was first
raised in Willson vs. Rock Creek R. Co.,
Com. Rep., 83.

“This conflict is not so great as at first blush would
appear. For all recognize that While there is a
smitlarity, between railroads and street. railroads

+ Inters.

there is also a difference. Some courts, emphasizing
the similarity, hold that in statutes the word ‘railroad’
includes ‘street railroad,” unless the contrary is re-
quired by the context. Others. emphasizing the dis
similarity, hold that ‘railroad’ does not include ‘street
railroad’ unless required by the context. since, as
tersely put by the Court of \ppeals of Kentucky, “a
street railroad, ina technical and popular sense,
different) from an ordinary railroad as a

IS cs

street is

cI Os ete ae ch Nah aca a

41)

from a road. Louisville & P. R. Co. vs. Louisville
City R. Co., 2 Duv. (Ky.), 175.

“Tf the scope of the act is such : as to show that
both classes of companies were within the legislative
contemplation, then the word ‘r hg will include
‘treet railroad. On the other hand, if the act was
aimed at railroads proper, then ‘street pers ads’ are
e xchuded. :

“It is to be poted that ordinary railroads are con:
structed on the companies’ own property. The track:
extend from town to town, and are usually connected
with other railroads which themselves are further
connected with others, so that freight may bs
shipped, without breaking bulk, across the continent,
Such railroads are channels of interstate commerce.
Street railroads, on the other hand, are local, are
laid in streets as aids to street traffic, and for the uss
of a single community, even though that comunity
be divided by state lines, or under different miuatict pal
control, When these street railroads carry passen-
vers across a state line they are, of course, engaged
ity interstate commerce, but not the commerce which
Coneress had ins mind when legislating in ISS;

The railroads referred to in the act were
not those having separate, distinct, and local: streei
lines, but those of whom tt was required that the:
should make joint rates and reason thle facilities for
interchange of trafie with connecting lines, so that
freight might be easily and expeditiously moved 1
interstate commerce.”

It is also true that the case of Railroad Company vs.
Downey, subsequent to its decision by the Court of Appeals,
was brought to this court on a writ of error; but this court
declined and refused to pass upon the very questions now
presented in this case, upon the distinet ground that the
vet of 1906 after its emasculation by having been declared
sneonstitutional so far as it affected interstate commerce,
heeame a mere local statute and that it was therefore with-

—_— Ea eT eet eee re D

4]

out jurisdiction to review the construction placed upon it
by the Court of Appeals.

In Hughes vs. Indiana Traction Company, decided by
the Supreme Court of Indiana, June 3, 1914, and reported
in 105 N. E., at p. 537, construing the Indiana Co-Employes’
Liability Act of 1908, applying to “every railroad or other
corporation in the State,” it was held that street railways
could not be included under the term “other corporations,”
and that it:

ay does not, in view of a long course of
legislation and judicial decisions recognizing the dis-
tinction between steam railroads and Street and inter-
urban railroads, apply to an interurban railroad com-
pany operated by electricity, for railroad c mMpanies
operate long trains controlled by numerous servants,
while trains on interurban lines generally consist of
a single car operated by two servants.”

Citing, in addition to a long line of Indiana cases, Sams
vs. St. Louis, ete., R. Co., 174 Mo.. 53, 73 S. W., 686, 61
L. R. A., 475; Norfolk, etc., Traction Co. vs. Ellington,
108 Va., 245, 61 S. E., 779,17 L. R. A. (N. S.), 117,

In this case the court, quoting from a prior Indiana de-
cision, says:

“It is quite true that an electric railroad, as we
now know such roads. might be called a railroad:
but, as was said in Bridge Proprietors vs. Hoboken
Co., 1 Wall., 116, 17 L. Ed., 571: ‘It does not fi Hlow
that when a newly invented or discovered thing is
called by some familiar word, which mes nearest
to expressing the new idea, the thing so styled is
really the thing formerly meant by the familiar
words. . . . The track on which the steam
cars now transport the traveler or his property is
called a road; sometimes, perhaps generally, a rail
road. The term road is applied to it, no doubt, be-
cause in some sense it is used for the same purpose

42

that roads had been used. But until the thing was
made and seen, no imagination, even the most fertile,
could have pictured it, from any previous use of
the word road.

“In discussing the expression ‘upon a railway’ as
used in the act, the author of Dressers Employers’
Liability, sec. 80, says that the expression means a
steam railway or one originally operated as such.
This section of the act was passed to meet the dan-
yers arising from steam railroads, and it was enacted
at a time before electric railways had been adopted,
or street railways had become a source of public
danger.”

“See, also, Whatley vs. Zenida Coal Co., 122 Ala.,
118, 26 South., 124; Jarvis vs. Hitch, 161 Ind., 217,
67 N. FE., 1057."

It is to be remembered that at the time this legislation
was enacted the Congress of the United States was follow-
ing similar legislation enacted by a large number of the
States of the Union. \fter the question had arisen and
been decided in a number of them as to whether or not these
previously enacted laws applied to electric railways or not,
Congress did not see fit to put any language into its enact-
men’ expressing a purpose to extend it to street railways
de ag an interstate business. [It must be presumed that it
acted with knowledge of these decisions in thus adopting
this legislation under the principle that when one State
adopts legislation originally adopted in another State which
has been the subject of judicial construction, that in so
adopting it adopts as a part of the law the construction which
has been placed upon such law in the State of its origin.
Applying this principle to the case at bar, it would appear
clear that the Federal Employers’ Liability Law of 1908 was
not intended to apply to street railways.

(b) At the most that question was one of fact
which should have been submitted to the jury
and not determined for the jury by peremp-

43

tory instructions as was done by granting ap-
pellee’s prayers Nos. 4, 5, 6, 7 and 8, all of
which assumed as matter of law the appellant
to be a common carrier by railroad within the
meaning of the Federal Statute, and as such
applied it to the case (Assignments 9, 10, 11,
12, 13).

Even should it be held, that if the Washington Railway
and Electric Company, in addition to doing a purely passen-
ger business was also engaged in carrying freight or in other
activities or methods, that it would constitute it a common
carrier.

In discussing this question in the Court of Appeals, coun-
sel for appellee apparently admitted that the great weight of
State decisions on this point upheld the contention of the
appellant, stating on their brief (p. 23):

“Appellant's brief cites and quotes from a great
number of State decisions * * *”

and comfort themselves in regard thereto thus :

“How does it avail appellant to cite a hundred or
more decisions of State Courts. ¢ mstruing their own
local statutes, as stars to guide this Court in constru-
ing a Federal Statute. when those State decisions
must fade away as the stars of night in the bright
sunlight of the illuminating contra decisions of the
Supreme Court of the United States. casting their
rays of reasoning fairly and squarely on the dis
puted question ?”

The opinions of the Supreme Court of the United States,
to which the learned counsel here to touchingly refer, are
the cases of Omaha & Council Bluff Street Ry. Co. vs. In-
terstate Commerce Commission, 230 U.S. 324, which they
further say “was studied with great care:” MeAdow ys.

44

Kansas City W. Ry. Co., 164 S. W., 188, subsequently
affirmed by this Court in 240 U. S., 51; Spokane, etc., Ry.
Co. vs. United States, 210 Fed., 243, subsequently affirmed
in 241 U. S., 344, and Spokane, ete., Ry. Co. vs. Campbell,
217 Fed., 518, since affirmed in 241 U. S., 497; United
States vs. B. & O. S. W. Ry. Co., 226 U. S., 14.

We will briefly consider each of these cases to show that
none of them except the Omaha & Council Bluffs Case his
any application to the case at bar.

The case of United States vs. B. & O. S. W. R. Co., 226
U. S., 14, did not pass on the question as to whether an
electric railway was a “railroad” within the meaning of
the Federal Emplovers’ Liability Law of 1908 or not. That
question was not presented. The question there was whether
or not the Interstate Commerce Commission had jurisdiction
to order switch connections and an interchange of traffic
between the steam railroads in question and the Cincinnati &
Columbus Traction Company, an interurban electric rail-
way. The Court said through Mr, Justice Holmes (p. 18):

“The line of the ‘Traction Company is an ‘inter-
urban’ electric railway for passengers and some
freight, running under a state charter between Nor-
wood and [illsboro, through the middle of the dia-
mond enclosed by the steam roads, (with which it
was seeking switching connections), and authorized
to go on to Columbus * * *. The Traction
Company applied to the Commission for switch con-
nections and they were ordered as we have said.”

The Court continues:

“Some technical objections were raised, but the
substantial question is whether the Traction Com
pany is a ‘lateral branch line of railroad’ within the
meaning of the first section of the act to regulate
commerce, amended by .\ct of June 8, 1910."

45
After discussing this question. the Court held:

“The Traction Company is not within this class
It is an oo venture, mits general course
parallel to, more or less competing with, the steani
roads, and rani i ona different plan.”

And thereupon affirmed the action of the Commerce Court
in reversing the action of the Interstate Commerce Com-
mission which ordered the switch connections to be made.

It is hard to conceive how this case could be cited for
authority for a proposition in no way involved. As far
as the particular point whi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0410%3A2. Public record. Not legal advice.