Stewart v. Baltimore & OR Co.
137 F.2d 527
2d Cir.
1943
Check Treatment

*1 CO. STEWART v. BALTIMORE & O.

No. 291.

Circuit Court of Second Circuit.

July 19, 1943. Robinson, City C. of New York John (Morris Wainger and William Paul

Allen, City, counsel), both of New York plaintiff-appellant. Schwebel, City Robert New York Combs, Y., Rochester, (William C. N. defendant-appellee. counsel), for HAND, Before L. AUGUSTUS N. CHASE, HAND, Judges. Circuit HAND, Judge. N. Circuit AUGUSTUS employed by intestate plaintiff’s defendant, Baltimore and Ohio Rail- Company, helper a hostler road East Salamanca, New York. On the evening of 30, 1941, the decedent suffered October coronary thrombosis which as the testimony indicates, had resulted from straining attempting while in the defendant’s rail- a defective switch did yard. He not recover from road *2 point testimony, 1941. another and died on November in his said that thrombosis prior to Octo- some medical good He had in health hold cor- authorities a onary by brought can about ber 30. thrombosis exertion and that it cannot. some employ- in decedent had been the Upon foregoing a record which the many years and ment of the defendant for an judgment outline the trial court directed prior had to his attack for some months dismissing complaint at the the close of helper with an- working as a hostler plaintiff’s case, appealed. the and latter has employee Edman. Edman other named judgment think We the be re- must night testified that about 10 o’clock the versed was enough because there evidence engine the accident he an at the was on require jury of the case to the to submission coaling engine railroad coal chute an and in and also because there was error exclud- yard duty throw a that it was decedent’s to important ing offered on behalf of evidence engine, being that the after switch so coal- plaintiff. the ed, place might be taken to where its the pick up. crew was it This coal chute justify The defendant seeks to was about 400 feet from the switch stand. dismissal of the claim on the in cab engine While was of the ground really switch was not de the decedent came over and told him that only fective but hard move because new he had “tried to throw the switch and and stiff. But it should be observed that the it,” that had couldn’t do “he wrenched his threw three other switches without decedent it,” trying and side do that “he felt a difficulty very evening on the he strained kind of click in his side.” The decedent question with switch in and that engine then climbed car and into Edman Edman did use a bar in order to need.to switch, got and ran to the off threw' the any of other There is switches. by using switch a small iron bar about two proof that the defendant had tested pry. long as a He feet had used the bar switch after it was installed or had done to throw on other occasions this anything prevent being used its an new,” move, which was “brand and hard to employee without undue exertion. In our but had never used it to throw opinion it was for the whether Shortly leaving after the engine operation question of the switch in was so quit day the decedent work for the and ar- likely injury to result in from over-exertion rived at his about 11:15 P. M. home About prudent employer that a would not have morning began A. M. the next he to suf- workmen, supplied it his but would rather pain fer attack severe in his chest and easily ap have furnished a turned more physician, Unger, arms and his Dr. was sent pliance. There have been decisions for. testified that in order to make negligent that it is which held to re diagnosis a history obtained from him a quire a to move articles workman that are as to the circumstances under which his ill- heavy help. for him lift without too began and was told “that pain ness his be- Bache, G.T., Dept., First Albertz v. 57 Hun gan around P. M. when o’clock he was 639; 592, 10 Bowman N.Y.S. v. Kansas trying turn big one those railroad Co., City Light Mo.App., 213 Electric S.W. Shortly thereafter switches. he felt sharp a 161; Dry Boone, Goods v. Stewart Co. in his pain chest and sick since this minute.” 103; Ky. Illinois S.W. Cent. R. Unger further testified diagno- Dr. that his Ky. 318, 32; Langan, v. 76 S.W. malady sis of decedent’s was a coronary Co., Pac. R. Culver v. Union Neb. and that the thrombosis decedent “died of Garrett, 199 N.W. Rice v. consequences direct during Tex.Civ.App. 194 S.W. Bonn Gal * * * his work. This Co., Tex.Civ.App., & A. R. veston S. S. switch.” Co., Boyd Great Northern R. W. days Three before decedent’s 274 P. 293. is true that in death 84 Mont. a family recovery member of his called in cases sometimes failed be Dr. these Lee Gunn, employee doctor, proved knowledge by the defendant’s railroad cause who pain assumption him in very danger involuntary found and severe restless. patient but, by testified that the Dr. Gunn the amendment of the Feder had the risk suf- coronary Liability Employers’ fered thrombosis or Act embolism al that he had 45 U.S.C.A. sustained Title “an ex- amended 53 Stat. said ertion,” assumption gave of risk history “a “the doctrine exertion.” § negligence defense testified that The doctor also was obliterated” the exertion “contributory carrier and there but, part cause” of of the was left death was a evidence though it contained true and question only the purposes practical “for testi- with his other inconsistent negligent somewhat carrier whether hos- proved a mony. as Edman Inasmuch proximate negligence was the whether that entitled plaintiff was tile witness the Atlantic injury.” Tiller v. of the cause impeach- 58, 66, purposes him cross-examine *3 R. 318 U.S. Line Coast affi- had testified the ment and after he 446, decision 444, The 87 L.Ed. — . in the true, statements his in to use davit was Civil Court of Texas of the her case. by proof of affidavit as affirmative on Ross, relied 230 Hines v. S.W. ad- both 4-were Exhibits 3 and question Therefore defendant, really on the turned the credi- only bearing no missible not as has risk and hence assumption of of evi- bility the as affirmative of of witness but the amendment pertinency in view of evidence use as affirmative may said of the dence. Their thing be same 1939. The Edman testified permissible R. because Northern v. Great was decision in Jirmasek exhibits made in these 814. that the statements Co., 186 N.W. 151 Minn. W. 37th St. 313-321 were true. v. recover Jenkins employee cannot Doubtless 503; 397, 402, 31 N.E.2d Corp, 284 N.Y. may suffer every damages for harm Freundlich, Cir, 95 F.2d 2 v. United States provide employer through failure of his 376, 379. unless appliance with the best sort him in that the chance the situation such is testimony Edman about The jury foreseen. can be his regarding him decedent what the told here, where, the likelihood as difficulty throwing the switch admis in was that was operation a switch the from gestae Decedent’s the res rule. sible under been be be to have turn cannot said hard to enough to Edman were near statements apprehension ques yond a reasonable spon regarded as in time to be event employer maintained a whether tion they apparently were made taneous jury. was for the proper standard of care any motive to dis deliberation or without Co., 318 U. Atlantic Coast Line Tiller v. Mosley, 8 Insurance Co. v. the facts. tort Over-ex 87 L.Ed.-. 63 S.Ct. S. 437; v. Os 19 L.Ed. Westall Wall. resulting is in serious casualties ertion 282; borne, Mutual Cir, Rast v. 2 115 F. be as something can well foreseen which as 773; Cir., 4Co., 112 F.2d Life Ins. something and is other occurrences Co., Cir., 5 127 Ins. Walker v. Prudential may employer thought be bound which an Ins. Marsh v. Preferred Acc. F.2d prevent. steps to take all reasonable Cir., Union 89 F.2d Fort Street Cir., foregoing Hillen, It follows from the Depot F.2d plaintiff good prima Cir., case West, made a facie Ass’n v. Travelers’ Protective hand, have been submitted to the which should the state 226. On the F. proof the accident was lack was made unless the decedent to Odell ment of improper and, based on hear ing because it was accident in an hour after about eye-witness say was no tendency evidence. There of the courts to con view of exception hearsay exertion in the decedent’s gestae fine the res only testimony The to the ac proximity as to the event in made statements by relate, cident was Edman who narrated the they think the exclusion we to which occurrence; by fellow-employee testimony another by about judge of Odell’s the trial Odell, decedent, named said that who to him cannot be declarations the decedent’s “tired,” just him looking met before eleven of discretion. Fort regarded as an abuse Hillen, Cir., evening 30 and Depot o’clock on the of October Co. v. Union Street myself guess “I I strained New York de The recent said: F.2d 307. switches,” Unger Rapid Dr. or New Transit in York cision Handel gave App.Div. whom the decedent 297 N.Y.S. Corporation, Dr. Gunn history exertion as basis for N.Y. 13 N.E.2d of his affirmed attempting diagnoses exception were to make. to the hear gestae res limited the hearsay and, opinion severely excluded The court as the testi- in our rule most mony important and certain liberal represent of Odell items the more view does in Unger’s report Courts deal of Dr. of his call on de- the United States shown the, testimony. (a), Rule 43 night It Under cedent the accident. admit- with such ing Procedure, hearsay testimony 28 U.S.C. some Civil ted but Federal Rules 723c, we should follow spite (Exhibit 4) following in section excluded his affidavit of A. practice. that Edman testified the the more liberal the fact affidavit testimony Dr. surer of Some of kind The as such accidents. ex sole rejected hearsay; of this basis liability, any, most as its if testimony, must be opinion, cluded should negligence our its which in- caused the jury. disputes was en have been received. witness No one that. gaged obtaining information from So what negligence was the defendant’s ? regarding and extent of decedent the nature permitting is said to have been in a new satisfy his exertions in order to switch, which the deceased hired to of his illness and to the cause and nature work, operate throw in the course of his The informa proper administer treatment. so hard he could not take hold of the handle purposes important for these tion was ordinarily and throw it as such are switches apparently view the there- was no reason to forgotten thrown. It should not that he improbable. testimony Such statements required was not pull any harder on *4 physicians held and to have been this handle than he saw fit and that he after against rule outside other courts as tried and liberty simply failed he was at to hearsay and have been admitted because a report that fact Edman he did. to as There likely patient seeking medical advice is not emergency duty part was no and no physi to his make untruthful statements to try Stewart but to as best could with- being cian he is not in or where consulted injury out work himself. to rail- a present prepare der to a to claim or for trial. is, course, road brakeman strenuous and They quite for rea are admissible different men who follow it must at times exert them- spontaneous they are utter than that sons will, selves harder than at others and it is gestae. Meaney ances under the rule res reasonably probable, try sometimes to move Cir., States, 112 F.2d 130 v. United something budge. cannot That is all Calvey, Cir., A.L.R. United States v. day’s in the work and the elimination one as Ty 110 F.2d United States possible of the defenses to an action 766, 771; rakowski, Cir., United F.2d negligence of what has been called the as- Nickle, Cir., 372, 374; 60 F.2d States v. sumption not, of risk doctrine does or so Roberts, Cir., United 62 F.2d States v. seem, would change slightest in the the bur- testimony 596. think that We resting upon plaintiff prove den a still to declaration, of Dr. to decedent’s as negligent. concurring opin- defendant See except “but the switch the words was out ion of Mr. Frankfurter in Tiller v. Justice order,” was admissible. words Those Atlantic Coast Line R. 318 U.S. than narrative were no more some 63 S.Ct. 87 L.Ed. -. It is not the unnecessary thing that was enable the equivalent establishing newa cause of physician proper diagnosis of the make Liability action. solely is still based on Moreover, patient. case or treat negligence which still is what it was before accurately did not describe the those words injury the likelihood of negli- was so condition of the switch because it was gible any that railroad did not fail in pot order,” speaking “out but properly duty legal it owed the deceased when it merely unduly hard to move. new and merely try let him as he would to throw this For have mentioned the errors we the switch. judgment is reversed. may policy good be to enact laws which industry pecuniary will make the hear the CHASE, Judge (dissenting). Circuit this, of such accidents as but loss until then My only disagreement majority with the liability on, and while tort alone is relied I the conclusion that the record ts in shows juries ought believe that cannot to be al- prima defendant least that the facie easy lowed to decide how a new railroad respect to the negligent in installation and should certainly turn. That will of the maintenance switch. The failure of standards; differing create perhaps many as it, prove I see plaintiff, as the de- juries decide; may be and such negligent judgment fendant makes vary on same railroad will standards any makes harmless right and error which jury. supplant from It will respect may have been committed to the judgment engineers of railroad based upon evidence. training experience in actual railroad give must effect the fact operation We no with that the collective notion compensation inexperienced act covers an jurors such may untrained and received weighed intestate the evidence get from the light yet defendant been subject will, has made in- ideas on the an of their own I “Q. Well, you say it was there a would think, pre- now the contrary to what is more, Possibly, maybe week? A. I don’t Koske, etc., Delaware, R. v. vailing law. know, remember, keep I couldn’t I never no L.Ed. 279 U.S. track of switches. Toledo, Allen, 276 L. & W. R. St. 165, 170, “Q. 513. you 72 L.Ed. you U.S. 48 S.Ct. found that needed to it, use this iron bar in order throw didn’t compul- under That the deceased was you? Why, bar, yes, I used that little sion, otherwise, overexert contractual or * * * used it or twice— once this that the defend- himself on switch or have foreseen should “Q. you ant You mean didn’t have to use the he, else, anyone and be hurt or would do so bar for another A. Yes. switch? beyond fair seems debate from clear “Q. you And didn’t use it for which was re- following evidence switch; right it that ? A. No. plaintiff, and not controverted lied “Q. you it an iron bar Wasn’t shaker defendant, by the show the condition of Might used to throw this switch with? A. after deceased tried the switch so soon been, might have old one it that had not in vain to turn its condition long, broken off about or 3 feet I couldn’t changed Edman testified meanwhile. flat, just about an inch and a half that as follows: as to —kind wide, about an inch and a half thick.” Well, get “Q. engine and he did on this *5 up A. He happened? got then what jurors Because it me seems to that fair up engine me to the switch and he rode with could not decide on this evi and throwed the switch and I went down dence negligent, that defendant was I myself. judge clearly think the trial right in de ciding that issue a matter of law. Gun you “Q. say and threw You went down ning Cooley, U.S. A. Yes. switch. L.Ed. 720. you “Q. throw ? A. Throwed How did it my it with hands. you your “Q. hands anything Did did, Yes, I to throw the switch with? A. there, standing I a little bar down had time, I don’t know what for some that, for, grab I would hold of it was used day that throw the switch a little hard to put on it and I a little bar and throwed without trouble. al., WALKER v. ALTMEYER Social et you “Q. What kind of a bar that Security Board. Well, piece it with? A. of iron

throwed No. 261. long. feet about two ordinarily? “Q. it used for What was Circuit Court of Second know, iron, scrap it was old A. I don’t Circuit. somebody it there. left July 12, 1943. “Q. you used this iron bar throw switch; right? Yes, is A. right. you “Q. found it a hard You little

throw? A. Yes. “Q. right thought ? I I It that A. would myself. it easier for

use the bar to make you “Q. long using had the bar How particular switch? A. I how times. don’t remember before, you had thrown it “Q. You had thrown it all the ? A. I time.

not long “Q. How had that switch been remember, I very couldn’t

there? new long, it was a brand