Central Vermont R. Co. v. White, 238 U.S. 507 (1915)
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Scribd Government DocsCentral Vermont R. Co. v. White, 238 U.S. 507 (1915)
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Scribd Government Docs238 U.S.
507
35 S.Ct. 865
59 L.Ed. 1433
CENTRAL VERMONT RAILWAY COMPANY, Plff. in Err.,
v.
MARY THERESA WHITE, Administratrix of the Estate of
Enoch L. White.
No. 407.
Argued April 23, 1915.
Decided June 21, 1915.
Mr. J. W. Redmond for plaintiff in error.
Mr. Warren R. Austin for defendant in error.
Mr. Justice Lamar delivered the opinion of the court:
1. On January 12, 1912, Enoch L. White was killed in a rear end collision while
employed as brakeman on the Vermont Central, an interstate railway. His
administratrix sued the company, in a Vermont court, for 'the benefit of the
widow and next of kin, minor children.' The jury returned a verdict for $7,168.
The judgment thereon was affirmed by the supreme court of the state (87 Vt.
330, 89 Atl. 618), and the case was brought here on a record containing so
many assignments, covering 18 printed pages, as to make it proper to repeat the
ruling in Phillips & C. Constr. Co. v. Seymour, 91 U. S. 648, 23 L. ed. 342, that
the 'practice of filing a large number of assignments cannot be approved. It
perverts the purpose sought to be subserved by the rule requiring any
assignments.' 'It points to nothing and thwarts the purpose of the rule' (Chicago
G. W. R. Co. v. McDonough, 88 C. C. A. 517, 161 Fed. 659), which was
intended to present to the court a clear and concise statement of material points
on which the plaintiff in error intends to rely. Some of the assignments in the
present case relate to matters of pleading; others to the admissibility of
evidence, to the sufficiency of exceptions, and to various rulings of the trial
court which involve no construction of the employers' liability act, and which,
therefore, cannot be considered on writ of error from a state court. Seaboard Air
Line R. Co. v. Duvall, 225 U. S. 477, 486, 56 L. ed. 1171, 1175, 32 Sup. Ct.
Rep. 790.
2
2. We shall therefore only consider those assignments, discussed in the brief,
which raise a Federal question. Among them is the contention that the court
failed to direct a verdict for the defendant because the proof failed to show
negligence of the company, or to prove the facts necessary to establish liability
under the Federal law. Southern P. Co. v. Schuyler, 227 U. S. 601, 57 L. ed.
662, 43 L.R.A.(N.S.) 901, 33 Sup. Ct. Rep. 277; North Carolina R. Co. v.
Zachary, 232 U. S. 248, 58 L. ed. 591, 34 Sup. Ct. Rep. 305, Ann. Cas. 1914C,
159.
The evidence showed that on the night of January 1st, 1912, Enoch L. White
was employed by the Central Vermont Railway Company as brakeman on extra
freight train No. 401. It had passed several miles north of Bethel, Vermont, and
was proceeding up grade at a low rate of speed. White and the other employees
thereon had no notice that it was followed by a faster freight train (No. 708),
which, at Bethel, had received a 'clearance card' indicating that the track ahead
was clear and that it might proceed. The engine, pulling train No. 708, had a
leaking cylinder, from which steam escaped in such quantities as to make it
impossible for the engineer to see the tail lights of the train on which White was
employed. The result was that the faster train (708) ran into the slower train
(401) and in the collision White was killed. The evidence was amply sufficient
to sustain a finding that the death of White was due to the fault of the agents of
the railway company.
3. Complaint is made because the court failed to instruct the jury as to the law
respecting the assumption of risks. But there was not only no request to charge
on that subject, but there is no evidence that White knew of the negligence of
the agent in giving a 'clearance card' or of the leaking cylinder which obscured
the vision of the engineer. He did not assume the risk arising from unknown
defects in engines, machinery, or appliances, while the statute abolishes the
fellow-servant rule. 35 Stat. at L. 65, chap. 149, 2, Comp. Stat. 1913, 8658.
Under the facts there was, therefore, no error in failing to charge the jury on the
subject of assumption of risks. Southern R. Co. v. Gadd, 233 U. S. 572, 58 L.
ed. 1099, 34 Sup. Ct. Rep. 696; Gila Valley, G. & N. R. Co. v. Hall, 232 U. S.
102, 58 L. ed. 524, 34 Sup. Ct. Rep. 229; Seaboard Air Line R. Co. v. Horton,
233 U. S. 492, 504, 58 L. ed. 1062, 1070, L.R.A.1915C, 1, 34 Sup. Ct. Rep.
635.
4. The defendant, however, insisted that White knew his train was behind time
and running at a low rate of speed. The company contended that, in view of
these circumstances, it was his duty, under the rules, to put out lighted fuses and
torpedoes in order to give warning of the presence of train No. 401 on the track.
On that theory the company asked the court to charge that the burden was on
the administratrix to show that White was not guilty of contributory negligence.
In considering that exception the supreme court of Vermont held that the
defendant's contention was based on a correct statement of the state rule, but
said: 'This case, however, is brought upon an act of Congress . . . [which]
supersedes the laws of the state in so far as the latter cover the same field. . . .
Consequently the question of the burden of proof respecting contributory
negligence on the part of the injured employee is to be determined according to
the provisions of that act,' citing Seaboard Air Line R. Co. v. Moore, 113 C. C.
A. 668, 193 Fed. 1022, s. c. 228 U. S. 434, 57 L. ed. 907, 33 Sup. Ct. Rep. 580.
6
In this court the argument was devoted principally to a discussion of this ruling
counsel for the railroad company earnestly insisting that 'the lex fori must
determine all questions of evidence, including that of the burden of proof.
Whart. Confl. L. 3d ed. 478b.' It was argued that there is nothing in the
Federal statute indicating an intent to change the state rule as to the burden of
proof, and it is claimed that because of the court's mistaken construction of the
Federal act the railway company has been deprived of a right to which it was
entitled under the laws of Vermont.
There can, of course, be no doubt of the general principle that matters
respecting the remedysuch as the form of the action, sufficiency of the
pleadings, rules of evidence, and the statute of limitationsdepend upon the
law of the place where the suit is brought (M'Niel v. Holbrook, 12 Pet. 89, 9 L.
ed. 1011). But matters of substance and procedure must not be confounded
because they happen to have the same name. For example, the time within
which a suit is to be brought is treated as pertaining to the remedy. But this is
not so if, by the statute giving the cause of action, the lapse of time not only
bars the remedy, but destroys the liability. A. J. Phillips Co. v. Grand Trunk
Western R. Co. 236 U. S. 662, 59 L. ed. , 35 Sup. Ct. Rep. 444; Boyd v.
Clark, 8 Fed. 849; Hallowell v. Harwich, 14 Mass. 188; Cooper v. Lyons, 9
Lea, 597 (2); Newcomb v. The Clermont No. 2, 3 G. Greene, 295. In that class
of cases the law of the jurisdiction, creating the cause of action and fixing the
time within which it must be asserted, would control even where the suit was
brought in the courts of a state which gave a longer period within which to sue.
So, too, as to the burden of proof. As long as the question involves a mere
matter of procedure as to the time when and the order in which evidence should
be submitted the state court can, in those and similar instances, follow their
own practice even in the trial of suits arising under the Federal law.
But it is a misnomer to say that the question as to the burden of proof as to
contributory negligence is a mere matter of state procedure. For, in Vermont,
and in a few other states, proof of plaintiff's freedom from fault is a part of the
very substance of his case. He must not only satisfy the jury (1) that he was
injured by the negligence of the defendant, but he must go further, and, as a
condition of his right to recover, must also show (2) that he was not guilty of
contributory negligence. In those states the plaintiff is as much under the
necessity of proving one of these facts as the other; and as to neither can it be
said that the burden is imposed by a rule of procedure, since it arises out of the
general obligation imposed upon every plaintiff, to establish all of the facts
necessary to make out his cause of action. But the United States courts have
uniformly held that, as a matter of general law, the burden of proving
contributory negligence is on the defendant. The Federal courts have enforced
that principle even in trials in states which hold that the burden is on the
plaintiff. Washington & G. R. Co. v. Gladmon, 15 Wall. 401(1), 407, 408, 21
L. ed. 114-116; Hough v. Texas & P. R. Co. 100 U. S. 225, 25 L. ed. 617;
Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551 (4), 557, 35 L. ed.
270, 272, 11 Sup. Ct. Rep. 653; Washington & G. R. Co. v. Harmon
(Washington & G. R. Co. v. Tobriner) 147 U. S. 581, 37 L. ed. 288, 13 Sup. Ct.
Rep. 557; Hemingway v. Illinois C. R. Co. 52 C. C. A. 477, 114 Fed. 843.
Congress, in passing the Federal employers' liability act, evidently intended
that the Federal statute should be construed in the light of these and other
decisions of the Federal courts. Such construction of the statute was, in effect,
approved in Seaboard Air Line R. Co. v. Moore, 228 U. S. 434, 57 L. ed. 907,
33 Sup. Ct. Rep. 580. There was, therefore, no error in failing to enforce what
the defendant calls the Vermont rule of procedure as to the burden of proof.
9
5. There are, however, a series of assignments in this record which must be
disposed of in conformity with the general principle that matters affecting the
remedy are to be governed by the law of the forum. They are all based on the
fact that, while the railway company had lines running through Massachusetts
and Vermont into Canada, the declaration contained no allegation that White
was engaged in interstate commerce at the time of the collision. The company
made this the ground of a plea in bar. The administratrix thereupon filed a
replication admitting that the deceased was engaged in such commerce at the
time of his death. The company demurred to the replication on the ground that
it was a departure from the cause of action under the state law, and the assertion
a new cause of action under the Federal employers' liability law. This demurrer
was overruled and after verdict the defendant made the same facts the basis of a
motion in arrest of judgment.
10
The evidence showed a liability under the employers' liability act, and without
stopping to discuss whether, on general principles, the motion should not have
been overruled because the declaration was amendable to conform to the proof
(Grand Trunk Western R. Co. v. Lindsay, 233 U. S. 48, 58 L. ed. 842, 34 Sup.
Ct. Rep. 581, Ann. Cas. 1914C, 168; Toledo, St. L. & W. R. Co. v. Slavin, 236
U. S. 454, 59 L. ed. , 35 Sup. Ct. Rep. 306), it is sufficient to say that the
supreme court of the state held that the defect in the original declaration had
been cured by the charge in the plea and the admission in the replication that
White was employed in interstate commerce. That decision on a matter of state
pleading and practice is binding on this court.
11
6. Another assignment relates to the form of the verdict: The administratrix
brought suit 'for the benefit of the widow and next of kin, minor children.' The
defendant did not ask the court to instruct the jury to apportion the damages,
and there was a verdict for the plaintiff for $7,168. The defendant then moved
in arrest 'because the verdict of the jury in this case was a general verdict.' In
this court there was a departure from the language of the exception and error is
assigned 'because the judgment, being is solido, is void under the Federal
employers' liability law for the reason that damages must be apportioned by the
jury in accordance with the dependency of the relatives entitled to recover for
his death.' In support of that contention, the defendant relies on the statement in
Gulf, C. & S. F. R. Co. v. McGinnis, 228 U. S. 176, 57 L. ed. 787, 33 Sup. Ct.
Rep. 426, 3 N. C. C. A. 806, that 'though the judgment may be for a gross
amount, the interest of each beneficiary must be measured by his or her
individual pecuniary loss. That apportionment is for the jury to return. This
will, of course, exclude any recovery in behalf of such as show no pecuniary
loss.' That statement must be read in the light of the record then before the
court. It showed that one of those named as a beneficiary was a married
daughter of the deceased, living with her husband, and supported by him. The
jury actually apportioned the damages, so the question as to the validity of a
verdict in solido was not raised by the record. The quoted language is part of its
holding, that it was error to refuse to charge that the married daughter was not a
dependent of her deceased father. But there was nothing in that record which
would support a ruling that a general verdict was invalid, or that the verdict
could be set aside because it failed to fix the amount each beneficiary was to
receive.
12
Under Lord Campbell's act (9 & 10 Vict. chap. 93, 2) and in a few of the
American states the jury is required to apportion the damages in this class of
cases. But even in those states the distribution is held to be of no concern to the
defendant, and the failure to apportion the damages is held not to be reversible
error (Norfolk & W. R. Co. v. Stevens, 97 Va. 631 (1), 634, 46 L.R.A. 367, 34
S. E. 525; International & G. N. R. Co. v. Lehman, Tex. Civ. App. , 72
S. W. 619),certainly not unless the defendant can show that it has been
injured by such failure. The employers' liability act is substantially like Lord
Campbell's act, except that it omits the requirement that the jury should
apportion the damages. That omission clearly indicates an intention on the part
of Congress to change what was the English practice so as to make the Federal
statute conform to what was the rule in most of the states in which it was to
operate. Those statutes, when silent on the subject, have generally been
construed not to require juries to make an apportionment. Indeed, to make them
do so would, in many cases, double the issues; for, in connection with the
determination of negligence and damage, it would be necessary also to enter
upon an investigation of the domestic affairs of the deceased,a matter for
probate courts, and not for jurors. If, as in the McGinnis Case, the plaintiff sues
for the benent of one who is not entitled to share in the recovery (Taylor v.
Taylor, 232 U. S. 363, 58 L. ed. 638, 34 Sup. Ct. Rep. 350, 6 N. C. C. A. 436;
North Carolina R. Co. v. Zachary, 232 U. S. 248, 58 L. ed. 591, 34 Sup. Ct.
Rep. 305, Ann. Cas. 1914C, 159), and if her inclusion in the suit might increase
the amount of the recovery, the defendant may raise the question in such mode
as may be appropriate under the practice of the court in which the trial is had,
so as to secure a ruling which will prevent a recovery for one not entitled to
share in the benefits of the Federal act. But no such question was or could have
been raised in the present case, since, as matter of law, the wife and minor
children were all to be treated as entitled to share in the amount recovered for
the death of the husband and father. 35 Stat. at L. 65, chap. 149, Comp. Stat.
1913, 8657.
13
7. Assignments 25 and 27 relate to the refusal of the court to permit testimony
as to the delivery and contents of the 'clearance card' and the refusal to permit
the railway company to show that, under the Federal law, all engines, including
708, had been inspected and found to be in good condition. They both raise
questions of general law. They involve no construction of the Federal statute,
and neither directly nor indirectly affect any Federal right. Those assignments,
therefore, under Judicial Code, 237 [36 Stat. at L. 1156, chap. 231, Comp.
Stat. 1913, 1214], Rev. Stat. 709, will not be reviewed on a writ of error to a
state court. Seaboard Air Line R. Co. v. Duvall. See also Chicago Junction R.
Co. v. King, 222 U. S. 222, 56 L. ed. 173, 32 Sup. Ct. Rep. 79, and Yazoo &
M. Valley R. Co. v. Wright, 235 U. S. 376, 59 L. ed. , 35 Sup. Ct. Rep.
130, which state the rule where similar cases are brought here by writ of error
to a Federal court.
14
Judgment affirmed.
