PENNSYLVANIA SUPREME COURT.

March 2, 1893. In such a case the burden is on the party suing to prove the facts

STELLA M. HENCH, Admrx., etc., of Ed- necessary to show a violation of the Fedgar S. Hench, Deceased,

V.

eral statutes, and that the injured party was engaged in interstate commerce or with PENNSYLVANIA RAILROAD COMPANY, its instrumentalities at the time of the ac

Appt.

(246 Pa. 1, 91 Atl. 1056.) Evidence- -to show interstate character of work in which servant is engaged. 1. To entitle a brakeman who is a member of a shifting crew in a freight yard to hold the railroad company liable for personal in juries under the Federal employers' liability act or safety appliance act, he must show that at the time of the injury he was engaged in interstate commerce or with its instrumentalities, and this burden is not met merely by showing that in the yard where he was employed cars containing interstate as well as intrastate shipments were handled. absence of rec

Same ord.

suppression

2. Failure of a railroad company to produce in response to a subpoena the record of the cars with which an employee in a yard was at work when injured does not amount to a suppression of evidence which will raise a presumption against the company, if the evidence is uncontradicted that no such rec ord was kept.

A

(July 1, 1914.)

PPEAL by defendant from a judgment of the Court of Common Pleas for Washington County in plaintiff's favor in an action brought to recover damages, under the Federal employers' liability act, for the alleged wrongful death of plain

tiff's husband. Reversed.

The facts appear in the opinion. Messrs. R. W. Irwin, Rufus S. Marriner, and James A. Wiley for appellant. Messrs. W. Clyde Grubbs, Edwin T. Levengood, and Alexander M. Templeton for appellee.

cident.

In the case at bar the injured party was engaged as a brakeman on a shifting crew in a freight yard, where all kinds of freight were received and distributed. If the action had been brought at common law or for the violation of a state statute, the question of the character of the commerce in which the decedent was engaged at the time of his injury would have been immaterial; but plaintiff elected to bring her suit under the acts of Congress, as she clearly had the right to do, and thus assumed the bur den of making out a case under the Federal statutes. The controlling question for decision here is whether the evidence ad duced at the trial was sufficient to make out a prima facie case under the acts of Congress relied on to sustain a recovery. Appellant contends the evidence does not show that in the performance of his duties as brakeman the deceased husband had anything to do with interstate commerce, or that at the time of the injury he was engaged in such commerce, or that the cars being shifted in the freight yard where decedent was injured, including the cars which caused the injuries, were so engaged. Even counsel for appellee concede that there was no direct or positive testimony bearing upon these material questions. No attempt was made to prove what the general duties of decedent were, or what duties were included within the scope of his embrakeman only appears as an incident of ployment, and the fact that he was a the trial, without explanation as to the character of his general duties, or that he had anything to do in connection with interstate shipments. At the close of the

Elkin, J., delivered the opinion of the trial the only substantive fact proved tend

court:

commerce

ing to show in any way decedent to have This is an action of trespass to recover been engaged even remotely in interstate damages for personal injuries resulting in was that in the freight yard the death of plaintiff's husband, who was where he was employed cars containing employed as a brakeman in a general both intra and interstate shipments were refreight yard of defendant railroad company, ceived, stored, shifted, and reloaded for located in the city of Pittsburgh. The transportation from time to time. So far suit was brought under two acts of Con- as the evidence discloses there is no greater gress-the employers' liability act of April presumption that the empty cars being 22, 1908, and the safety appliance act of shifted at the time of the accident were ingaged in switching cars and making up trains, see page 54 of the earlier note, and page 61 of the later note. Generally as to the burden of proof as to the applicability of the Federal employers' liability act, see page 64 of the later note.

Note.

The constitutionality, application, and effect of the Federal employers' liability act form the subject of extended notes in 47 L.R.A. (N.S.) 38, and L.R.A. 1915C, 47. For the specific question as to the applicability of the act to employees en

tended for use in interstate commerce than | asking for the records in question, but was that they were to contain intrastate ship-informed that no record of empty cars was ments. The evidence is silent as to the char-kept. This witness testified that reports acter of freight with which these cars were of loaded cars were kept, but not of empty loaded when they arrived in the freight cars handled in the yard. The evidence yard, what disposition had been made of was straightforward and was not disputed. the cars after their arrival, and what kind This stands as an established fact by a of shipments, if any, they contained when witness produced by plaintiff, and not chalthey left the yard. All of these important lenged by anyone. The witness could not facts are left to conjecture. produce what he did not have, and how can it be said that he suppressed a record which never existed? There were two loaded cars in the draft of twenty-two cars; but counsel for plaintiff asked no questions about the loaded cars, and, indeed, these cars had nothing to do with the injury of decedent. Council did ask the witness Hickey for the number of the car which caused the injury, and was informed that it was "Hopper, 682,970." No further inquiry was made about this car, nor about the other five cars in the draft being shifted at the time decedent was injured. The numbers of these cars could have been obtained, their movements could have been traced, and the kind of shipments they contained when loaded and made up into trains could have been ascertained by proper inquiry; but no such questions were asked, and no attempt was made to elicit this information, or to establish these material facts. We discover no attempt to suppress evidence in this record, nor is there anything to indicate that the witness Allen did not tell the exact truth when he testified that no record of empty cars was kept while they were .lying in the freight yard awaiting consignment in regular trains, or were being shifted for this purpose. Under this state of facts, it is our opinion that the rule of spoliation, upon which the contention of appellee is based, has no application.

Can it be said under these circumstances that the plaintiff made out a case under the acts of Congress? It is argued that where there is no direct or positive evidence of the negligence charged, or of the facts required to make the acts of Congress applicable, the circumstances may be such as to warrant the necessary inference to be drawn by the jury. This is stating the rule more broadly than the cases relied on warrant. It is true that the facts proved at the trial may warrant a presumption of negligence, and there are exceptional cases in which it has been so held. But even in such cases it is for the court to say whether the facts proved are sufficient to raise the presumption relied on. 38 Cyc. 1519; Stoever v. Whitman, 6 Binn. 416. In the case at bar the facts proved do not show what kind of commerce decedent was engaged in at the time of the accident. The empty cars may have been intended for interstate shipments, or for intrastate. There is no more presumption one way than the other. The presumptions in this respect are equal, if, indeed, it can be said there is any presumption under such circumstances. Again, it is worthy of notice that the cars being shifted were empties and did not contain any kind of commerce, and there is no evidence to show from whence they came nor whither they were going, what kind of shipments they carried into the freight yard, or what character of commerce they were engaged in when they left it.

It is further contended for appellee that the failure to produce the records of the draft of cars in question when subpoenaed to do so amounts to a suppression of evidence on the part of appellant, and raises a presumption that decedent was engaged in interstate commerce. The difficulty with this argument is that the facts do not sustain it. The witness Allen was subpoenaed to produce the records of the conductor, Hickey, showing the cars he moved in the freight yard on the night of the accident. The witness appeared and testified, and there is nothing in his testimony to indicate a suppression of evidence. He said he had no such records, and that as soon as the subpoena was served he wired the Philadelphia office, where all records were kept,

As we view this case, the burden was on plaintiff to prove facts to show that her husband was engaged in interstate commerce, or had to do with the instrumentalities of such commerce, at the time he received his injuries, and as to these essential facts the proofs fail to make out a prima facie case. It is difficult to lay down a definite rule marking the division lines between intra and interstate commerce in this class of cases, so as to be able to determine with precision and exactness in each case as it arises whether the injured employee was or was not engaged in interstate commerce within the meaning of the acts of Congress. Much depends upon the facts of each particular case, and hence the necessity of proving the essential facts relied on to show that the injured party was engaged in interstate commerce, or had to do with its instrumentalities when he was injured. How liberally the acts of Congress shall be

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

Our view is that in cases like the one at bar commerce must be regarded as of two kinds, intra and interstate; and the status of the employees must be determined by the kind of commerce they are engaged in at the time the injuries were sustained. If they were engaged in interstate commerce, We are not unmindful of the recent deci- the acts of Congress apply; if they were sions of the Supreme Court of the United engaged in intrastate commerce, the FedStates in which this question has been eral statutes have no application. All of broadly considered. These cases construe this depends upon the facts, and in order the Federal statutes most liberally, and will to make out a case under the acts of Conhave the effect of extending their applica-gress plaintiff must prove that the injured tion in many directions. Such are Southern person was engaged in interstate commerce R. Co. v. United States, 222 U. S. 20, 56 L. at the time of the accident. In the present ed. 72, 32 Sup. Ct. Rep. 2; Second Employ-case this burden was not borne. ers' Liability Cases (Moudou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 56 L. ed. 327, 38 L.R.A. (N.S.) 44, 23 Sup. Ct. Rep. 169, 1 N. C. C. A. 875; Pedersen v. Delaware, L. & W. R. Co. 229 U. S. 146, 57 L. ed. 1125, 33 Sup. Ct. Rep. 648, Ann. Cas. 1914C, 153, 3 N. C. C. A. 779, and other cases of like import. We must assume, however, that it was not the intention of these decisions to construe the acts of Congress so as to make them cover injuries sustained by an employee engaged in intrastate commerce at the time he was injured. Certainly the acts of Congress could not apply to a railroad, or its employees, engaged exclusively in intrastate commerce, and not having any business of an interstate character. But no such situation is likely to arise, because nearly every railroad in this country, and perhaps every one, engages to some extent in interstate commerce, either by shipments to points outside the state or by receiving cars or freight from points beyond state lines. If the mere fact that a railroad may be used at times, frequently or otherwise, for interstate commerce transportation, fixes the status of all its employees as being engaged in interstate commerce within the meaning of the acts of Congress, without reference to the duties they were performing at the time of the injury, it would follow that all such employees, no matter how incidentally or remotely their duties had to do with interstate commerce generally, or what kind of commerce they were engaged in when injured, would come within the purview of the Federal statutes when they brought an action to recover damages for personal injuries. To so hold would mean the wiping out of all state reg

This position is sustained by a historical view of the decisions and legislation relating to this subject. The employers' liability act of Congress of June 11, 1906 (34 Stat. at L. 232, chap. 3073, Comp. Stat. 1913, § 3913), was declared unconstitutional by the Supreme Court of the United States, because it included subjects wholly outside the power of Congress under the commerce clause of the Constitution, that is, subjects relating to intrastate commerce. Employers' Liability Cases (Howard v. Illinois C. R. Co.) 207 U. S. 463, 52 L. ed. 297, 28 Sup. Ct. Rep. 141. Following that decision Congress passed the act of 1908, which in plain language limited its application to interstate commerce and to "any person suffering injury while he is employed by such carrier in such commerce." The evident purpose of this act was to limit its application to interstate subjects and to correct what the Supreme Court of the United States had pointed out as a fatal defect in the act of 1906. Keeping in mind the plain language of the act of 1908, and the sequence of events which led to its enactment, how can it be successfully contended that it may be so enlarged and extended as to include injuries to all kinds of employees engaged in all kinds of commerce, and that it is not to be restricted to interstate commerce and to persons en gaged therein?

There is some question as to the evidence being sufficient to sustain a charge of negligence under the acts of Congress even if it appeared that decedent was engaged in interstate commerce at the time. It is a close question, to say the least; but it is of no special importance, in the view we have

taken of the case, that there was no proof | have been caused by defendant's negligence. to show decedent to have been engaged in Reversed. interstate commerce. Having failed to establish this essential fact, the case falls.

Atl. 638, 19 Am. Neg. Rep. 504; Telephone
Co. v. Varnau, 5 Lanc. L. Rev. 401; Dev-
lin v. Beacon Light Co. 192 Pa. 188, 43
Atl. 962; Dillon v. Allegheny County Light
Co. 179 Pa. 482, 36 Atl. 164, 1 Am. Neg.
Rep. 174; Griesemer v. Suburban Electric
Co. 224 Pa. 328, 73 Atl. 340; Fitzgerald v.
Edison Electric Illuminating Co. 200 Pa.
540, 86 Am. St. Rep. 732, 50 Atl. 161;
Mullen v. Wilkes-Barre Gas & Electric Co.
229 Pa. 54, 77 Atl. 1108; Alexander v.
Nanticoke Light Co. 209 Pa. 571, 67 L.R.A.
475, 58 Atl. 1068, 17 Am. Neg. Rep. 354;
Cramer v. Aluminum Co. 239 Pa. 120, 86
Atl. 654; Illingsworth v. Boston Electric
Light Co. 161 Mass. 583, 25 L.R.A. 552, 37
N. E. 778.

dict for plaintiff, and from the judgment entered thereon, defendant has appealed.

The first assignment of error is to the refusal of the trial judge to give binding instructions in favor of the defendant, and the second assignment is to his refusal to enter judgment for defendant non obstante veredicto. It was admitted that the electric wires were part of a so-called high-tension power line, carrying 10,000 volts. The evidence offered upon the part of plaintiff tended to show that the insulation on the electric wires was worn off to a slight extent in a few places, but there was nothing to indicate that the wires were in any way out of repair. The testimony of the witnesses who had any knowledge of electricity tended to show that Geroski did not re

Potter, J., delivered the opinion of the ceive anything like the full force of the curcourt:

Mary Geroski brought this action of trespass against the Allegheny County Light Company, to recover damages for the death of her husband, John Geroski, which she alleges was due to the negligence of defendant. Geroski was a coal miner and lived at Glendale, Allegheny county. He was also the janitor of the Polish Falcon Hall, at that place. The hall fronts on a public street, and upon the roof of the front portion of the hall there is a flagpole. The wires of the defendant company are strung upon poles along the side of the street in front of the hall, at a distance of 12 or 13 feet from the building, and at a height of about 29 feet from the ground. The flagpole extends some 8 or 10 feet higher than the wires. There is a narrow board walk in front of the hall, and defendant's poles are placed between it and the roadway. On May 28, 1910, Geroski was about to raise the flag on the pole. A rope had previously been used for that purpose, but at that time Geroski attempted to remove the rope and replaced it with a piece of copper-plated wire. He attached an end of the wire to the rope, and began to pull it up. When the wire reached the top of the pole, it became entangled in some way, and in trying to loosen it, Geroski stepped backwards from the porch of the hall, where he had been standing, to the board walk, and then into the roadway, pulling and shaking the wire and rope. While so engaged, the small wire evidently came in contact with or in close proximity to, the overhead electric wire,

rent, or such as he would have received had the wire in his hand come in direct contact with an uninsulated part of the overhead electric wire. The testimony of these witnesses, who had expert knowledge of the subject, and of the conditions which existed at the time, tended to show that the shock which Geroski received came from the fact that the wire in his hand was brought by him into close proximity to the overhead highly charged electric wire, but not into actual contact with it. In the judgment of these witnesses, the injury was caused by the leakage of static electricity from the overhead wire, which, when the small wire was brought near to it, entered it by induction. It was further pointed out that, in case of direct contact between the wires, the burns received by Geroski would have been much more severe, and death would have It matters not, howbeen instantaneous. ever, whether the injury resulted from direct contact with the overhead wire, or from leakage therefrom which entered the small wire held by Geroski, when it was brought by him into close proximity to the overhead wire. For in any event it is apparent from the testimony in this case that, with such high-tension wires as these, carrying so heavy a voltage, mere insulation alone could not be depended upon to insure safety to the public. In any such case due precaution would require that the wires should be so placed that there would be no likelihood or reasonable probability of human contact therewith. If, therefore, under the circumstances, the defendant company ought to have reasonably anticipated that and Geroski received an electric shock which anyone, in the proper exercise of business caused his death. It was alleged on the or pleasure, would come in contact with part of plaintiff that defendant's overhead its overhead wires at the location in which wire, which was charged with a powerful they were placed, it would properly be liable current of electricity, was not properly in- in damages for such injuries as were the sulated, and was not in good repair. The proximate result of such location, unless trial in the court below resulted in a ver- the injured person was guilty of negligence