Clemence v. Hudson & M. Ry. Co.

HAND, Circuit Judge

(after stating the facts as above). The proposed exit in which the decedent was working was not wholly completed, but it was entirely capable of the use for which it was intended; that is to say, as an emergency exit. There was to be no formal opening of it to the public, who were indeed not to use it at all, except on possible occasions, when the usual exits, remote from this, should become inaccessible. It was therefore as much in use as it ever was to be, as much so as when the railings were completed and the steps widened at the top, which were the only substantial changes that must be made to complete the wofk. To clear the landing or floor of the upper chamber of the rubbish which had accumulated during construction was as much to clear one of the defendant’s exits as though it had incumbered a regular passageway at a station. Therefore we think the case's inapplicable which hold that the manufacture, repair, or adjustment of a tool or apparatus is not interstate commerce, when it has been removed from employment or has not yet been delivered to the carrier. Shanks v. D., L. & W. R. R. Co., 239 U. S. 556, 36 S. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797; Minn., etc., R. R. v. Winters, 242 U. S. 353, 37 S. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54; Industrial Commission v. Davis, 259 U. S. 182, 42 S. Ct. 489, 66 L. Ed. 888. Equally inapplicable are eases such as Raymond v. Chicago, M. & St. P. R. R., 243 U. S. 43, 37 S. Ct. 268, 61 L. Ed. 583, and N. Y. Cent. R. R. Co. v. White, 243 U. S. 188, 37 S. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, where the employee was at work upon a cut-off or tunnel, which had not yet gone into operation. These considerations led to the result in Wallace v. N. Y., N. H. & H, R. R., 99 Conn. 404, 121 A. 878, and Seaver v. Payne, 198 App. Div. 423, 190 N. Y. S. 724, affirmed 234 N. Y. 590, 138 N. E. 458. We do not suppose it will be argued that, had the decedent been employed in cleaning up the right of way itself he would not have been engaged in interstate commerce.

Our own decision in Hudson & Manhattan Co. v. Iorio, 239 F. 855, 152 C. C. A. 641, does not rule the case at bar. The rails being moved were to be held in reserve against possible need. Now it is true that an emergency exit is in some sense also held in reserve, but no more than an unoccupied siding, an extra ticket window, or an empty freighthouse. Parts of a railway’s trackage and structures do not, as we understand it, fall out of interstate commerce whenever they are not being used, at least not when the only possible use of them must be interstate. As well might one say that- the main tracks themselves were in use only when trains passed over them.

There is, besides, another ground on which jurisdiction may depend. Although the exhaust fan had not been running pending the changes, the drain pipes had been shifted and were carrying off water. The shaft was therefore a part of the necessary equipment for the main tracks, which must be kept dry. While it was not, indeed, essential to their operation that the chamber should be cleared of rubbish, it was a reasonable requirement, sinee access to them was made easier. It would be a crabbed doctrine to deny any relation between the drain pipes and the structures through which they ran.

We think that there was evidence to go to the jury upon whether the decedent died by an electric shock. Judge Hough and I do not in fact believe that any of the coil of wire at the bottom of the chamber was live, and a judge would have been justified in saying so to the jury. It seems to us pretty clear that the main lead had been cut, and Latwis’ testimony as to a shock was badly impeached by his earlier statements. Moreover, Belske swore to no hanging wire leading into, the coil, without which we cannot see how there could have been any connection with the current,, even if the old lead had not ■ been disconnected at the tap box. That lead came up a separate leg of the shaft from the new temporary wiring, which under the only evidence was eight feet away. Besides, we cannot see how the old lead could get current from the new, even had they touched.

Nevertheless, it is true that, if the old lead was disconnected only after the accident, and -if it hung down and into the coil, there would have been a current upon making a circuit through the iron sheet, and a deadly current according to one witness for the defendant. The coincidence of the decedent’s death with the touching of the wire, which was certainly for the jury, and the original assumption by all present that he had received a shock, were of course impressive, and are impressive still. The examination of the coroner’s physician hardly makes against it at all, for he was most perfunctory. We need not say whether without Latwis there would have been a ease, and we do not, because the whole evidence may be quite different another time; but we do say that his credibility was for the jury, and that with his testimony in the ease an issue arose of which the court could not dispose. It is to he remembered that the two men who swore that the old lead had been cut at the tap box were still in the defendant’s employ, and one was responsible for that duty. It was, of course, not impossible that, had he neglected it before, he might have cut off the lead within the time at his disposal before the other employées saw it. As indicated already, the ease is one which the trial judge would have been justified in taking strongly in hand, but in the end the jury alone could answer the issue.

The trial judge set aside the verdict, and then directed a verdict of his own, upon which he entered judgment. These last two acts he had no power to do. Slocum v. N. Y. Life Ins. Co., 228 U. S. 376, 33 S. Ct. 523, 57 L. Ed. 879,. Ann. Cas. 1914D, 1029. His only lawful conclusion upon setting aside the verdict was to set the cause down for a new trial. While his action in entering judgment is of course before us, we can do no more than to reverse it and his directed verdict, and thereupon to conclude as he should have concluded, by directing a, new trial. Had he let the verdict stand and directed judgment in spite of it, we might perhaps have reversed the judgment and entered the original judgment upon the verdict, which in that ease would have stood throughout. Hoffman v. American Mills Co: (C. C. A.) 288 F. 768. Had his judgment of nonsuit been right, we might perhaps have affirmed it, though he had set aside the verdict.

The plaintiff wishes us to go further, and review the order setting aside the verdict, as well as what followed upon it; but this we are without power to,do. U. S. v. Buford, 3 Pet. 12, 32, 7 L. Ed. 585; Blunt v. Smith, 7 Wheat. 248, 272, 5 L. Ed. 446; Brown v. Clarke, 4 How. 4, 15, 11 L. Ed. 850; Pomeroy’s Lessee v. Bank of Indiana, 1 Wall. 592, 598, 17 L. Ed. 638. It has 'been the uniform rule that an order granting or denying á new trial is not reviewable by writ of error, even though it proceed in fact from errors of law. U. S. v. Buford, supra. Hence we must stop in our review at the trial judge’s action after setting aside the verdict; all we can do is to leave the ease as he should then have left it. If it be argued that the trial judge did not grant a new trial, but only set aside the verdict, we answer that we gain no jurisdiction to review his decision because he followed it to an irregular conclusion. All we can do is to provide that his unreviewable action shall result in that which the law alone admits — a new trial. Pellerin v. International Cotton Mills (C. C. A. 1) 248 F. 242, 160 C. C. A. 320.

The cases relied on by the plaintiff are not in point. In these the plaintiff had got judgment on a verdict in the trial court, which the Circuit Court of Appeals had reversed. The Supreme Court, reversing the Circuit Court of Appeals, re-entered the original judgment on the verdict. But the Circuit Court of Appeals has no discretionary power over verdicts, and its action in setting aside the verdict was only an incident to its power to reverse the judgment. The Supreme Court could therefore review its whole action, and restore the case to the status quo. So could we, if we had power to review the action of the trial court in setting aside the verdict.

Judgment reversed; new trial ordered.