New Orleans & N. E. R. v. Hanna

Stevens, J., delivered the opinion of the court. This suit was instituted by appellee, Mrs. O. T. Hanna, administratrix, against appellant railroad company, then engaged in interstate commerce, to recover damages for the alleged negligent killing of her husband, 0. T. Hanna, a flagman employed in interstate commerce. The train upon which Hanna was serving as flagman left the Meridian yards about 4:25 a. m. March 30, 1916, and the deceased was' last seen by the conductor as the train was leaving the Meridian yards. Hanna at that time was going out of' the front door of the caboose with a lantern, and within' a few hours his dead body was found lying near the. railroad track some three miles from Meridian, badly mutilated evident-' ly as the result of being run over by Some train. On the trial of the case, there was evidence that one Thompson, a switchman, noticed a brake sticking on one of [48] the cars, and that he stepped on the rear of the caboose as the train passed him, and informed the conductor about the sticking brake, saying it was hitting the wheel. Hanna without intimating his purpose, left the caboose with a lantern in his hand and did not return. When the train stopped at Basic City to meet train No. 38 a search was made for the flagman, but he could not be found. The conductor thereupon requested the engineer of train No. 38, headed toward Meridian, to keep a lookout for Hanna, and as a result Hanna’s dead body was found several miles out of Meridian. There was no eyewitnes who could tell how Hanna fell or was thrown from the train. There was some evidence that the cars were examined, and that some blood was found spattered on the bottom of the rods of a refrigerator car immediately behind the car whose brake is charged to have been defective, and that there was blood on several of the cars between the ballast car, ■ charged to have been defective, and the caboose. There is evidence that the conductor released the brake.charged to have been working badly, so that this ballast car was no longer connected with the air line, and remained in that condition until it got to Hattiesburg. There is evidence tending to show that this ballast car had a ‘ ‘ bleeding ’ ’ rod to release the air brakes, on one side only, and that this rod was on the east side of the car, and that Hanna’s dead body was found mutilated and cut to pieces on the eastern side of the -track. On the trial of the case the plaintiff asked for and received instruction No. 2, charging the jury that if they believed from the evidence that Hanna was killed by the running of the locomotive and ears, or either, composing the train, “then the law presumes that such injury and death was caused by the want of reasonable skill and care on the part of the defendant railroad company,” etc. And the court refused instructions 2E, 3E, 4E, 5E, 6E, and 7E, attempting to charge the jury repeatedly that the plaintiff was not [49] entitled to the benefit of section 1985, Code of 1906, as amended by chapter 215, Laws of 1912, onr so-called prima-facie statute, and that in case mere proof of injury inflicted by the running of the engines or cars could not be taken as prima-facie evidence of the want of reasonable skill and care, but that the burden of proof was upon the plaintiff to show by the evidence and to the satisfaction of the jury “that Hanna’s injury and death was proximately caused by some negligence of the defendant corporation; and, unless the plaintiff has shown this to your satisfaction by the testimony, then it is your duty to return a verdict for the defendant.” The court was asked to instruct in different forms that the burden of proof was upon the plaintiff to show negligence, but all such instructions were refused. There was a verdict for the plaintiff in the sum of ten thousand dollars, and from the judgment based thereon the defendant appeals to this court. This is admittedly a suit under the federal Employer’s Liability Act, and, being so, this case is ruled by the very recent opinion of the supreme court of the United States in New Orleans & Northeastern R. R. Co., and the United States Fidelity & Guaranty Co. Plaintiffs in Error, v. Cheney Harris, Administratrix of the Estate of Van Harris, Deceased, Defendant in Error (decided June 3, 1918) 246 U. S. —, 38 Sup. Ct. 535, 62 L. Ed. —, a certified copy of the opinion of which is before us. The court, speaking through Mr. Justice McEeynolds, holds that: “The federal courts have long held that where suit is brought against a railroad for injuries to an employee resulting from its negligence, such negligence is an affirmative fact which plaintiff must establish,” and “in proceedings brought under the federal Employers’ Liability Act rights and obligations depend upon it and applicable principles of common law as [50] interpreted and applied in federal courts; and negligence is essential to recovery. . . . That the question of burden of proof is a matter of substance, and not subject to control by laws of the several states. ’ ’ Under this decision our prima-facie statute has no application to suits brought under the federal Employers’ Liability Act. It necessarily follows that the granting to the plaintiff in this case of instruction No. 2. and the refusal to grant the defendant the instructions mentioned was error necessitating a reversal of the judgment rendered by the learned circuit court. The issue was not properly submitted to the jury. The judgment appealed from will be reversed, and the cause remanded for a new trial under proper, instructions. Reversed and remanded.