1. Upon review of a judgment of a state court in a case under
the Federal Employers' Liability Act, this Court will examine the
record, and if it is found that, as a matter of law, the evidence
is not sufficient to sustain a finding that the carrier's
negligence was a cause of the death, judgment against the carrier
will be reversed. P. 474.
2. Evidence considered and found to lend no substantial support
to the contention that the death of plaintiff's intestate, a
brakeman who was run over by a car in a train which was in process
of being made up and coupled, was caused or contributed to by a
pipe near the rail which the railroad company had negligently
permitted to remain in a bent condition. P.
271 U. S.
474.
3. When circumstantial evidence is relied on to prove a fact,
the circumstances must be proved, and not themselves presumed. P.
271 U. S.
477.
4. It is the duty of the trial judge to direct a verdict for one
of the parties when the testimony and all the inferences which the
jury reasonably may draw therefrom would be insufficient to support
a different finding. P.
271 U. S.
478.
160 Minn. 411 reversed.
Page 271 U. S. 473
Certiorari to a judgment of the Supreme Court of Minnesota which
sustained a recovery of damages in an action brought under the
Federal Employers' Liability Act by the administratrix of a
brakeman who was killed by an accident.
MR. JUSTICE BUTLER delivered the opinion of the Court.
Petitioner is an interstate carrier by railroad. William Coogan
came to his death at Farmington, Minnesota, July 14, 1923, while
employed as a brakeman on one of its interstate trains. Respondent
brought this action in the District Court of Dakota County in that
state under the federal Employers' Liability Act, approved April
22, 1908, 35 Stat. 65, c. 149, to recover damages for the benefit
of the widow and children of the deceased. At the close of all the
evidence, petitioner moved the court to direct a verdict in its
favor on the ground, among others, that respondent had failed to
prove any actionable negligence on the part of petitioner, and that
any verdict for respondent would be based upon speculation and
conjecture. The motion was denied, and there was a verdict for
respondent. A motion for judgment in favor of petitioner
notwithstanding the verdict was overruled. Judgment for respondent
was given by the trial court, and, on appeal, it was affirmed in
the highest court of the state. 160 Minn. 411. The case is here on
writ of certiorari. Section 237, Judicial Code.
Petitioner contends that the evidence is not sufficient to
sustain a finding that any negligence on its part caused or
contributed to cause the death.
Page 271 U. S. 474
By the federal Employes' Liability Act, Congress took possession
of the field of employers' liability to employees in interstate
transportation by rail, and all state laws upon that subject were
superseded.
Second Employers' Liability Cases,
223 U. S. 1,
223 U. S. 55;
Seaboard Air Line v. Horton, 233 U.
S. 492,
233 U. S. 501.
The rights and obligations of the petitioner depend upon that Act
and applicable principles of common law as interpreted by the
federal courts. The employer is liable for injury or death
resulting in whole or in part from the negligence specified in the
Act, and proof of such negligence is essential to recovery. The
kind or amount of evidence required to establish it is not subject
to the control of the several states. This Court will examine the
record, and if it is found that, as a matter of law, the evidence
is not sufficient to sustain a finding that the carrier's
negligence was a cause of the death, judgment against the carrier
will be reversed.
St.L., Iron M. & S. Ry. v.
McWhirter, 229 U. S. 265,
229 U. S. 277;
New Orleans & N.E. R. Co. v. Harris, 247 U.
S. 367,
247 U. S. 371;
New Orleans & N.E. R. Co. v. Scarlet, 249 U.
S. 528.
Petitioner's Train 92 was made up at the Farmington yard by a
switch crew shortly after 7 o'clock in the morning. Deceased was
the rear brakeman of the road crew which was to take the train to
Austin. He was killed before the train was ready to start. There
was no eyewitness, and the case depends on circumstantial evidence.
The tracks in the yard run east and west. The most northerly is the
main line track, and, commencing with that one, the others are
numbered consecutively 1, 2, 3, etc. Cars were taken from other
tracks and put upon track 1 to make up the train. The caboose was
kicked -- that is, detached from the engine in motion and sent by
momentum -- east to a place where it was stopped by deceased, who
road and controlled it by hand brake. Two cars were in like manner
put upon that track. They were controlled by a brakeman of the
switch crew at the hand brake on the east
Page 271 U. S. 475
car, which coupled automatically to the caboose. Deceased was
then standing on the ground beside the caboose. That was the last
time he was seen before the accident. Similarly, nine or ten more
cars were sent east on track 1, and, under control of the same
brakeman, were coupled to the others. And then three or four cars
-- making up all that were to go in the train -- were moved east on
that track attached to the engine until they came into contact with
the cars already there. Then the engine was stopped to discover
whether the coupling made. It was found that it had, and, in order
to clear the switch, the engine moved all the cars east about two
car lengths -- 66 to 80 feet. Then the switch engine was detached.
Immediately, the road engine came and was coupled to the cars. The
air hose was coupled between the engine and the first car. But it
was found that the air line was open at some other place. The
brakeman of the switch crew walked east along the south side of the
train and coupled the hose at the east end of the last cut that was
set in. After that, and while going toward the rear, he found the
body of deceased. It was near the west end of the second car from
the caboose, and was lying parallel with the track, outside the
south rail and on or at the ends of the ties. There were
indications on the ground sufficient to show that he had been
between the rails of the track, that he had been run over by the
east truck of the car next to the caboose, that his left leg and
left arm had been crushed between wheel and rail, and that his body
had been dragged about 15 feet. There was evidence to support
respondent's contention that it was the duty of deceased to couple
the air hose, and that, prior to the accident, all couplings had
been made except that made by the brakeman of the switch crew and
the one at the caboose.
The breach of duty relied on is this: about 12 inches south of
the south rail of the track, and fastened to the ties by clamps and
spikes, there was an air pipeline extending
Page 271 U. S. 476
about 800 feet. It was installed three or four years before the
accident. At the time of the accident, a stretch of the pipeline
about 15 feet in length had been loosened and bent 3 or 4 inches
toward the rail and upward leaving a space of from 3 1/2 to 4
inches between it and the ties. It had been in that condition for
some months. The evidence is sufficient to warrant a finding that
there was a breach of duty in this respect. But the precise
question for decision is whether the condition of the pipe caused
or contributed to cause the death of deceased. The east end of the
part so loosened and bent was about 15 feet west of the place where
the body of deceased was found. Respondent argues that a brakeman,
going in from the south side to couple the hose between the caboose
and rear car, naturally would step inside the south rail with his
right foot, leaving his left foot between the rail and the air
pipeline. As to that, the evidence is in conflict, but it will be
taken to be sufficient to sustain the contention. The shoes worn by
deceased at the time of the accident were received in evidence. The
outside of the counter of the left shoe was scratched, and showed a
marked rounding depression parallel with the sole and just above
the heel. This condition was first noticed some days after the
accident. In the meantime, the shoes had been left in a garage, and
no attention was given to them. The depression in the counter was
not so clear at the trial as when first noticed. The foregoing
indicates the substance of all the evidence bearing on the cause of
death.
The case was tried, and respondent supports the judgment, on the
theory that, when the switch engine stopped after the last
coupling, deceased went between the caboose and car to couple the
air hose; that he stepped between the rails with his right foot,
leaving his left foot outside the south rail and between it and the
pipeline; that, stooping to reach the air hose, his left foot
slipped backward
Page 271 U. S. 477
under the bent pipe; that, before he had time to make the
coupling, the cars were started backward in the movement to clear
the switch; that, when he attempted to straighten up, his left foot
was caught under the pipe, and he was forced backward, run over,
and killed. It follows that, unless the evidence is sufficient to
warrant a finding that the death resulted from the catching of
deceased's left foot under the bent part of the pipeline, the
judgment cannot be sustained. As there is no direct evidence, it is
necessary to determine whether the circumstances are sufficient to
warrant a finding of that fact. Whenever circumstantial evidence is
relied on to prove a fact, the circumstances must be proved, and
not themselves presumed.
United States v. Ross,
92 U. S. 281,
92 U. S. 284;
Manning v. Insurance Co., 100 U.
S. 693,
100 U. S. 698.
Assuming it was the duty of deceased to couple the air hose, it was
necessary for him to go between the cars to do so. He was standing
by the caboose when the first cut came in. The air hose coupling
might have been made then or at any time after that. It was not
made, and it is left to be inferred that he postponed effort in
that direction until after all the switching had been done and
until the engine had hold of the string of cars. And then it must
be inferred that he went between the cars in the manner claimed --
his right foot between the rails, leaving his left foot outside,
where, it is argued, it was caught under the bent pipe.
The "rounding depression" on the counter of the shoe is not
sufficient to bridge the hiatus in the evidence. It is not shown
when or how that depression was made. The condition of the shoe
before the accident is not disclosed. A number of days elapsed
before it was noticed, and it is not shown that, in the meantime,
care was taken to keep it in the same condition, or that the
depression was not made after the accident. Even if the appearance
of the shoe and other circumstances are sufficient to
Page 271 U. S. 478
justify an inference that the depression might have been made by
the bent pipe, it cannot be said that they constitute any
reasonable support for a finding that it was so made. And, assuming
that the depression on the shoe counter was made by contact with
the bent pipe, there is nothing to indicate whether it was made at
the time deceased was knocked down, or later while he was being
dragged. But there is nothing to show that the pipe had any
connection with the accident. The fact that deceased was run over
and killed at the time and place disclosed has no tendency to show
that his foot was caught. One between cars coupling the air hose is
very liable to be run over if the train is unexpectedly moved. A
finding that his foot was not caught under the pipe is quite as
consistent with the evidence as a finding that it was.
It is the duty of the trial judge to direct a verdict for one of
the parties when the testimony and all the inferences which the
jury reasonably may draw therefrom would be insufficient to support
a different finding.
Baltimore & Ohio R. Co. v.
Groeger, 266 U. S. 521,
266 U. S. 524.
When the evidence and the conclusions which a jury might fairly
draw from the evidence are taken most strongly against the
petitioner, the contention of respondent that the bent pipe caused
or contributed to cause the death is without any substantial
support. The record leaves the matter in the realm of speculation
and conjecture. That is not enough.
Pawling v.
United States, 4 Cranch 219,
8 U. S. 221;
Patton v. Texas & Pacific Railway Co., 179 U.
S. 658,
179 U. S. 663;
Looney v. Metropolitan Railroad Co., 200 U.
S. 480,
200 U. S. 488;
St.L. & Iron Mtn. Ry. Co. v. McWhirter, supra,
229 U. S. 282;
St. Louis-San Francisco Ry. v. Mills, ante, p.
271 U. S. 344.
Judgment reversed.