Opinion
Decided June 28, 1928.
A right of action under the federal safety appliance act accrues to a brakeman employed by a railroad engaged in interstate commerce who is injured by the pulling away of a defective grab-iron on a freight car in use on said railroad.
Such action may be maintained though the plaintiff has not specifically declared upon the act; but an amendment to that effect may be allowed.
In such a case it is immaterial whether the injured party or the car was employed in interstate commerce when the accident occurred and the action is not subject to the two year limitation of the federal employers' liability act.
In such action, recovery is not dependent upon proof of the defendant's negligence as the statute imposes an absolute and unqualified duty to maintain grab-irons in secure condition; contributory negligence is a defence; aliter a fellow-servant's negligence or assumption of risk.
When a right of action under a federal statute is subject to no federal statute of limitation the law of the forum applies.
A verdict will not be set aside on the ground of erroneous instructions which were prejudicial only to the prevailing party.
CASE, for personal injuries. Trial by jury and verdict for the plaintiff. The defendant seasonably moved for a nonsuit and for a directed verdict upon the ground that the plaintiff, at the time of his injury, was engaged in interstate commerce and that his rights were, therefore, governed exclusively by the federal employers' liability act. U.S. Code, Tit. 45, c. 2, ss. 51-59. These motions were denied and the defendant excepted. The defendant also excepted to the denial of certain requests for instructions and to portions of the charge to the jury, but all exceptions "that have no bearing upon the question whether the plaintiff was engaged in interstate or in intrastate commerce at the time of his accident" were waived. Transferred by Scammon, J.
The defendant is a common carrier, engaged in both state and interstate commerce. The plaintiff was, upon December 15, 1921, the day of his injury, a yard brakeman in the defendant's employ, and a member of a switching crew which operated exclusively in the city of Manchester. This crew handled both state and interstate shipments without distinction, as occasion demanded. The plaintiff testified that, upon the morning of the accident, the first work of the crew was to make up in the Manchester yard a string of eight cars, all loaded with lumber coming from points in this state and all consigned to a single manufacturing establishment located on the so-called Valley street siding in Manchester; that after these cars had been collected, they were hauled in the direction of Valley street as far as the Tilton Box Company siding and left there. The remainder of the morning was spent by the crew in delivering miscellaneous freight in East Manchester. Immediately after dinner the shifter and crew proceeded to the Tilton siding and the engine was attached to the eight cars above mentioned, the purpose being to haul them about half a mile further to a point known as the water works siding, where they were to be attached to five other cars standing upon that siding. A train of thirteen cars was thus to be made up, all of which were to be delivered at various points along the Valley street siding. Of the five cars located upon the water works siding, four contained interstate shipments.
Just as the string of eight cars was starting to leave the Tilton siding, the plaintiff undertook to climb to the top of a box car, and was injured by the pulling away of a grab-iron, which precipitated him to the ground. His injuries did not incapacitate him at the time, and the movement of the cars went forward as planned. The five additional cars were picked up at the water works siding and all of the thirteen cars then constituting the train were delivered during the afternoon to consignees along Valley street. The case was submitted to the jury under instructions which are sufficiently stated in the opinion.
Timothy F. O'Connor and Myer Saidel (Mr. Saidel orally), for the plaintiff.
Warren, Howe Wilson (Mr. Howe orally), for the defendant.
In order to sustain its motion for a directed verdict, the defendant undertook to establish the validity of two legal propositions, viz: 1. That upon the uncontroverted facts set forth above, the plaintiff at the time of his injury was engaged in interstate commerce, and 2. That his rights were, therefore, governed exclusively by the federal employers' liability act which would bar a recovery by reason of the two-year limitation contained therein. It is unnecessary for us to consider the merits of the first proposition, for the second is clearly unsound.
The act of congress known as the safety appliance act (U.S. Code, Tit. 45, c. 1, s. 4) provides as follows: "It shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars." By the amendment of 1903 the act was expressly made to apply to "all . . . cars . . . used on any railroad engaged in interstate commerce." U.S. Code, Tit. 45, c. 1, s. 8. Thus "in the exercise of its plenary power to regulate commerce between the states, Congress has deemed it proper, for the protection of employees and travelers, to require certain safety appliances to be installed upon railroad cars used upon a highway of interstate commerce, irrespective of the use made of any particular car at any particular time." Texas c. Ry v. Rigsby, 241 U.S. 33, 41. The plaintiff was injured because the car upon which he was working was not provided with secure grab-irons, and a right of action, therefore, accrued to him by reason of the defendant's breach of the above statute. Although the act contains no express language conferring a right of action for the death or injury of an employee, "the right of private action by injured employee, even without the employers' liability act, has never been doubted." Texasc. Ry v. Rigsby, 241 U.S. 33, 39. The subsequent passage of the employers' liability act did not affect this right, for it contains a specific provision that nothing therein "shall be held . . . to impair the rights of their employees under any other Act or Acts of Congress." U.S. Code, Tit. 45, c. 2, s. 58.
There is no federal statute limiting the time in which an action to enforce such a right must be commenced, and hence the state law applies. Campbell v. Haverhill, 155 U.S. 610. It is plain that the present action was commenced within the six-year period prescribed by P.L., c. 329, s. 3. Although it does not appear that the declaration referred to the safety appliance act, the plaintiff was none the less entitled to have his rights determined in accordance with the applicable thereto. An amendment counting on a breach of this statute might have been filed before or during the trial, even though the statute of limitations had then run (New York Central c. R.R. v. Kinney, 260 U.S. 340; Gagnon v. Connor, 64 N.H. 276), and may now be filed, if necessary. P.L., c. 334, s. 9; Lyman v. Brown, 73 N.H. 411. "Amendments may be made after verdict, without a new trial, when the verdict could not have been affected by the amendment if it had been made before the trial." Morse v. Whitcher, 64 N.H. 591, 592. The verdict in the present case could not have been affected to the prejudice of the defendant by the suggested amendment.
As the case was submitted to the jury, the plaintiff's right to recover was made to depend upon proof of defendant's negligence. A heavier burden was thus imposed upon the plaintiff than would have been required under the above statute. "The question whether the defective condition of the ladder was due to the defendant's negligence is immaterial, since the statute imposes an absolute and unqualified duty to maintain the appliance in secure condition." Texas c. Ry Co. v. Rigsby, supra, 43.
The question whether the plaintiff was engaged in interstate commerce at the time of his injury was submitted to the jury and they were instructed that if he was so employed he could not recover. This instruction was erroneous (Texas c. Ry Co. v. Rigsby, supra). and calculated seriously to prejudice the plaintiff's case, but the defendant cannot complain of it. Colby v. Lee, ante, 303.
In a case governed by the provisions of the safety appliance act, the defendant may still avail itself of the defence of contributory negligence (Minneapolis c. Ry v. Popplar, 237 U.S. 369) and the full benefit of this right was accorded to the defendant in this suit. The issue of the plaintiff's fault was submitted to the jury under adequate instructions, and that portion of the charge which placed the burden of proving this defence upon the defendant correctly stated the rule which must be applied in the administration of this federal law. Central Vt. Ry v. White, 238 U.S. 507; Crugley v. Railway, 79 N.H. 276.
Since the statutory obligation to furnish secure grab-irons is absolute, as pointed out above, the fellow-servant defence was not open to the defendant, and that of assumption of risk is denied to it by the terms of the statute. U.S. Code, Tit. 45, c. 1, s. 7.
It therefore appears not only that all the defendant's rights were fully protected, but that it received the unmerited benefit of extremely favorable instructions, based upon an erroneous view of the law. Under these circumstances we perceive no reason for setting aside the verdict. The situation is very similar to that which existed in Felch v. Railroad, 66 N.H. 318, where the court said, "in no way were the defendants deprived of their right to a fair trial; but, on the other hand, they had the full benefit of every defence open to them upon the proper issues in the case, and the additional benefit of a defence which was not properly open to them, and one, too, which strongly tended to defeat any recovery by the plaintiff."
The foregoing conclusions dispose of all the defendant's exceptions which are not included within the terms of the waiver set forth above, and it is, therefore, ordered that upon the filing of an amendment as suggested herein, there be
Judgment on the verdict.
SNOW, J., was absent: the others concurred.