*1 CAHILL, Raymond Plaintiff- G. Appellee, & YORK,
The NEW HAVEN HART NEW COMPANY, RAILROAD FORD Defendant-Appellant. Docket 23559.
No. Appeals States Court of
United Second Circuit.
Argued 11, 1955. May July
Decided Brumley, Edward City, New York Pare, City, John G. New York and Thom Frank, Judge, Circuit dissented. Hackett, Cheshire, Conn., as P. sel, of coun appellant. for Randolph J. SeifertNew City York Blank, William Brooklyn, Y„ A. N. Harry Kalman, City, New York of coun- ’ J’ . J appe se ee> ’ HAND, FRANK, Before SWAN Judges. Circuit SWAN, Judge. Circuit T h m appeal judgment is an from a for "f, , „ . . $90,000 m the amount of , ,. , , , , . .. brought an action under Federal Em- , aa Atr c<n a on ployers Liability Act, 45 U.S.C.A. § , , ,. . . seq., jury. et tried to a The court denied , , j- j-a A verdict, motions to direct and to set ., , , , , „ ,, .’ judgment aside the verdict and enter , , ,, , , , ,, ,, . defendant, or, alternative, m the , . a a- , grant a new trial. The contentions on , ., ,, , ,, ,, ^ appeal (1) are that there was no evidence on the of the defend plaintiff’s which contributed to ant injuries, that the court erred in admitting evidence other accidents at suit, place or near the accident point decisive; In view the first our second need not hence the be considered. *2 to public couplings car rear happened: would cause the on a The accident Connecticut, stopped highway Haven, truck close into slide back a in New it, plaintiff the hurried across and U. behind the known Avenue S. both as Forbes anglecock intending highway highway turn an substan- Route 1. runs to The stop emergency by tially an motor which would effect east of it and west. Use rolling.back. prevent vehicles, passenger and and the train from automobiles both anglecock trucks, heavy. highway the is is Brakeman Wells turned In the just plaintiff As it. lead of which before the reached double line railroad tracks Wells, freight leave, was who to he started from the Belle Dock defendant’s authority plaintiff, him told yard, in to and senior Avenue located north of Forbes high- stay hold Bridge, and to come back and of into the West Tomlinson bridge green stopped way easterly within the the truck which and continue over stationary along rear car or six of and five feet the Forbes Avenue to Waterfront began single directly Street, then the and behind it. Wells track crosses where a moving along right get the southerly the motor traffic to of Forbes Avenue side train, plaintiff angles the of the and When north side into Waterfront Street. flag up a freight took engine his hand cars is with his read of switch train position the using necessary stop car and the rear to between the tracks it is green junction feet from about two truck. He was motor vehicle traffic near the the of front car and three or four feet Street. the of Forbes Avenue and Waterfront 5,. 1953, accident, moved day truck. a trailer the When On the his June of car, past with close employ of the plaintiff, the north side in the the a brakeman - flag clearance, peeked around assigned the to the was railroad junction. the car to see whether the side of the traffic at this eastbound motor before, turned back could clear. As he work and trailer had never done such He green truck, stationary this by yard- Dock toward the he was told the Belle warning suddenly without “Well, and careful, master: and don’t plaintiff, up throw- the worry and struck anything. started about The conductor coupling against projecting ing you your way him the will tell over what to stationary re- car. The blow yard rear of the engine, do.” He on a left the switch spine. injury to his in serious stopped sulted feet from about Waterfront Street charges and the conductor then negligence Several on the get stop told to off and the east- of the railroad were in the asserted flag. bound motor namely, traffic with red He complaint, provide (1) failure to did so without incident the switch plaintiff work; (2) while place with a safe to engine turned south into Waterfront prepare plaintiff to failure instruct and forty-five do; Street. About minutes assigned later he the work to engine returning the directing observed switch improperly (3) him to work string freight with a loaded knowledge cars with place an unsafe with that such again flagged unsafe; (4) coke. He the place prop- eastbound failure motor until the train traffic turned from erly supervise work in that de- prescribe proper did not meth- Waterfront into track on the fendant Street regulations procedures, rules and ods northerly pro- side of Forbes Avenue and question, work in to cover westerly past point ceeded where negligent conduct toward the otherwise standing. plaintiff’s duty This ended plaintiff. stop eastbound traffic and he duty provide walk back toward the south a railroad started place employee work with a safe highway. up- is an There side duty; Bridge. employ grade if it absolute were an over Tomlinson This freight employee’s to come to sud- insurer of the train er would be an caused safety stop. would be irrele The westbound motor vehicles den Employer’s train Under the Federal Lia also vant. which were Fearing bility Act,, employer’s is the stopped. slack in the law, by imposed the truck in the same the common It true that as that driver. stalling namely, for” in furnish- “but reasonable care sense of causation to use ing place employees to of the train a safe and the to Cahill to direction flag contribute, *3 the railroad involves the traffic ac work.1 All work on a did happened danger, and cident could if those some has to be done not but it have dangers lia- not involve conditions But neither the involved do had not existed. legal prac- bility provided condition railroad takes all was a cause in the sense.2 the certainly anticipated the precautions It was to that ticable consistent not stationary only or four feet business. When truck three conduct of the freight away warning stop up on would without train came to a sudden start necessary against stationary place pin him Forbes to rear Avenue it flagman Supreme motor vehicles in car. As the Court said to control Brady 476, Ry. Co., U.S. which behind v. Southern 320 had been 236, directly 483, position page 232, page behind 88 train. at 64 at Cahill’s S.Ct. directly require stationary in front to train and L.Ed. 239: “Events too remote stationary appear prevision to not be antici would reasonable need truck occupy again page position pated.” he could And in 320 U.S. at be the safest flagman. duty 484, page performing aas 64 S.Ct. 236: “The carrier’s while at negligence suggest link in an unbroken that Wells was must be a He not does Obviously reasonably placing of events.” fault him there. chain foreseeable in being when the traffic risk the began struck Brady bar, In case at as pass train would have been to case, evidence is such we think that the greater either side of he stood at had defendant is the that a verdict for the only sup- furnishes no rear car. The evidence The trial conclusion. reasonable negligence charge based port for the granting motions erred to court not provide with a safe him to failure judgment direct a verdict and to enter place work. non obstante veredicto. Judgment reversed. charges negligence
Other as properly sert failure instruct Cahill Judge FRANK, (dissenting). Circuit supervise his work. It is true was he The testified as follows: He inexperienced flagman, as a he “peeking had been around” side of given specific no instructions other than the last railroad car to see whether the “stay brakeman Wells’ direction to moving trailer truck could clear the car. and hold that truck there.” But we can just It was as he turned back to face the super not what conceive instructions or truck other that he “was struck.” That given vision could have been would that truck, motion, before it went into against protected have an accident of plaintiff. “three or four feet” from happened. experienced An the kind that jury reasonably could take the distance flagman no would have incurred less risk as four feet. starting than a novice from the sudden stationary jury reasonably of a I think forward five feet that the could stationary (1) that, properly train. if infer behind the But even had defendant arguendo plaintiff, it be he should instructed would assumed have been vigilant especially that, circumstances, warned to be so warned have been “peeked and respect, a breach of in this would not have there was around” at the moving truck, injury said cannot be that his trailer but would have it re- truck, omission. resulted from such The sole mained face-to-face with the other that, fnjury so, plaintiff, was the of and had he cause of his done an App.D.C. Ry., Co., 356, 403; Bailey 319 U.S. 62 1. v. Central Vermont 68 F.2d Chi- cago, M., Slowik, 1062, 350, 352, St. P. & P. R. Co. v. L.Ed. 1444. 63 S.Ct. 87 Cir., 920; Chesapeake 184 8 F.2d & Ohio Pennsylvania Co., Railway Cir., R. Burton, v. 6 See Orton Co. 4 2. v. F.2d 217 36; Cir., Ry. Sisson v. Southern F.2d 7 640 598, Co., 1947, 649, 21, 329 aged R. U.S. 67 S.Ct. and would could man
able-bodied
572;
1947,
way.
Thompson,
91 L.Ed.
Lillie v.
jumped
of harm’s
have
out
73;
459,
140,
68
92 L.Ed.
U.S.
S.Ct.
colleagues’ opinion
My
to me
seems
States, 1948,
Johnson v. United
333 U.S.
that,
saying
a matter
amount
46,
391,
468;
68 S.Ct.
92 L.Ed.
Wilkerson
have
judicial notice,
not
man could
such
McCarthy, 1949,
53,
336 U.S.
69 S.Ct.
truck,
safety
jumped
when a
York,
413,
497;
93 L.Ed.
Affolder v. New
away,
stationary,
started
feet
four
been
Co., 1950,
C. & St. L. R.
U.S.
position
I do
in motion. With that
683;
S. Ct.
94 L.Ed.
v. New
Stone
agree.
leap
from
forward
A
cannot
York,
Co., 1953,
C. & St. L. R.
344 U.S.
sport-
greyhound or a modern
rest like a
*4
407,
358,
441;
73 S.Ct.
97 L.Ed.
Smalls
that
passenger
I think
automobile.
model
Co., 1955,
v. Atlantic Coast
R.
348
Line
jury
unrea-
acted
we cannot hold that a
946,
reversing
Cir.,
439,
U.S.
75 S.Ct.
4
agile young
believing
sonably that an
641 York, H. H. & N. Newv. And Korte see Ruddy 88, 86, Cir., Co., F.2d 191 R. Co., Cir., 224 R. York Central v. New recognized we F.2d where permis- Supreme widened Court in F.E.L.A. scope jury inferences sible R.
litigation. & N. also Louisville See Cir., Botts, 173 F.2d Co. v. *5 CAMPBELL, Jr., of Internal Director
Ellis Collection the Second for Revenue Texas, District Wife, SAILER and A.
William O’Leary Sailer. Patricia
No. 15315. Appeals Court of
United States Fifth Circuit.
June Holland, Atty. Gen., H. Brian Asst. Asst, Slack, Spe. Atty.
Ellis N. to the Gen., Ford, Atty., John C. Asst. U. S. Tex., Dallas, Stroud, B. Ethan Hilbert P. Spe. Atty. Gen., Zarky, Assts. Floore, Atty., Worth, Heard L. S.U. Fort Tex., appellant. for Atwell, Dallas, Tex., Webster Walton Dallas, Grayson, III, counsel, Tex., of appellees. for TUTTLE, Before CAMERON and Judges. JONES, Circuit Judge. JONES, Circuit Sailer, A. William who will hereafter taxpayer, be called and Patricia wife, O’Leary Sailer, filed Federal in- years come tax returns 1950 reporting capital gains moneys