280 F. 612 | 2d Cir. | 1922
Lead Opinion
At about 2 p. m. on June 28, 1918, Taber, plaintiff’s intestate, a trainman then and for some time in the employ of Delaware, Lackawanna & Western Railroad Company, suffered the injuries which resulted in his death. He was working on a train known as the local freight and pick-up, which in the course of its trip reached Bath, N. Y. A pick-up train is a local which picks up and sets out cars at various stations. At Bath the railroad runs east and west, and the freight station is south of the main tracks.
The theory of plaintiff’s case is that Taber was struck by a canopy over a transfer platform, which was just west of the freight house and next to the freight house siding. Taber was the middle brakeman of the train, which was proceeding in an easterly direction. When it reached Bath, the orders required that the train take cars from behind the freight house. As the train entered Bath, it proceeded along the track next to the freight house and the canopy to a point easterly therefrom. The engine was then cut off and proceeded to a switch, where it took on a car, detoured around'the remainder of the train, and then returned on the track next to the freight house canopy. During this time, the engine was proceeding westerly backing up and pushing this one car. Directly east of the freight- house was 'a crossing and Taber was on the top of the car, as the crossing was approached.
“He was there like for any crossing. At a crossing it is mostly customary for a freight man to ride on top to prevent any accident.”
As this movement was being made, Pelone, the head brakeman stood between the tank or tender of the engine and the car, with his right foot-on the car and his left foot on the engine sill. He stood about 6 or 7 inches to a foot from the outer edge of the engine and was in this position, watching for signals from Taber on top.
“As we approached the freight house,” testified Pelone, “I was standing in the same place, and I heard a crash, and it sounded overhead; so I hung on as tight as I could and a few minutes later I was hit with Taber’s body on*614 my left shoulder and glancing my head. * * * He hit the concrete platform and it sort of rolled down in between the engine and the platform. * * * ”
Pelone further testified:
“It [the crash] sounded right about the place where the canopy projects out from the freight house there.”
In answer to the question', “Now, do you know what was to be done after this crossing was fiaggéd as you had passed it ?” Pelone testified:
“It was customary — in railroading you always, in backing up and trying to get in a switch, you always cut off and interlock your switch to save time; and when the engine goes by, you turn your switch. That was Taber’s job when he was on the car.”
The switch was on the side toward the canopy. It was the custom to get off the cars on the side where the switch, which was to be thrown, was situated and this necessitated the use of the side ladder toward the engine; i. e., the side near the end where Pelone was standing, as there was no ladder on the same side at the opposite end of the car. Taber was taken to a hospital, and later died of concussion of the brain, due to trauma.
Further description as to the locus in quo, except as to the canopy, infra, will not be useful, as the location of the tracks is understood by the litigants, and verbal description is not helpful without the aid of the diagram and photographs in evidence.
At the threshold, the question of fact on the evidence is whether Taber came in contact with the canopy, or whether the falling of his body was due to some other cause. The edge of the roof of the freight house proper was back about 18 inches to 2 feet; but according to Barton, a photographer, there was a clearance of only an inch between the edge of the canopy and one car which he observed when photographing, and no clearance in the case of another car. In other words, there was practically no clearance between canopy and car. The freight station was 112 feet long. The canopy was 62 feet long and 12 feet wide, and did not cover the entire cement platform. From the ties of the railroad track vertically to the edge of the canopy, the distance was 15 feet 3% inches. The canopy was about a foot higher .than the roof of the car on which Taber stood, and Taber’s height was 6 feet. There were no telltales nor warning devices before the canopy was reached. It is stipulated that Taber and defendant were engaged in interstate commerce and that Taber was in defendant’s employ.
We think the case at bar presents a state of facts less troublesome in this respect than those set forth in Choctaw, Oklahoma & Gulf R. R. Co. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed. 96. We have not failed carefully to consider the observations in respect of this same occurrence of the experienced judge who wrote for the Appellate Division of the Supreme Court, Third Department, in Taber v. McAdoo, 188 App. Div. 341, 177 N. Y. Supp. 104. We have not before us the testimony of McGrain, the “actual eye witness” therein referred to. But, irrespective of such testimony, we think that the physical movement of Taber’s body on the evidence in this case cannot be so surely accounted for as to warrant us in holding, as matter of law, that his body did not come into contact with the canopy. Experience in the trial courts warns us that, except in the plainest cases, it is unsafe for courts to assume that the descent of a body, in circumstances such as here described, can be explained only upon one theory. The testimony, in our opinion, was of the character which invites argument pro and con, and presents a question of fact for submission to a jury.
2. The Construction of the Canopy. This is the third trial. Taber v. McAdoo, 188 App. Div. 341, 177 N. Y. Supp. 104, and 192 App. Div. 939, 182 N. Y. Supp. 953. In this case, plaintiff, for the first time, called one Mather, a civil engineer, who testified that the general practice regarding clearances of railroads in New York state from the center of the track was 8 feet lateral and 23 feet vertical, and not less than 2 feet 6 inches from the edge of the car. An examination of Mather’s testimony, however, suggests serious doubt as to whether, as matter of law, he qualified as an expert, so as to testify to general railroad practice in the respects here concerned, and we think the wiser course is to disregard his testimony.
Soper, who was conductor in charge of this local freight and an experienced Delaware, Lackawanna & Western employé contributed an important piece of testimony, when he stated that, so far as he knew, there was not another transfer platform on this railroad system like that here described. Thus it appears that there was evidence that this
Probably Southern Pacific Co. v. Berkshire, 254 U. S. 415, 41 Sup. Ct. 162, 65 L. Ed. 335, is the case nearest to that at bar. In that case the arm of the postal crane was 14 inches from the window of the engineer’s cáb, the construction of these postal cranes was uniform and necessary for the business of the United States mail, and the deceased employé knew of the existence of the crane and could have seen it from his seat, had he looked, long before he reached it. Here there was no clearance, no similar construction on this railroad, no mechanical requirement of operation, and a debatable question of necessity for the canopy.
In Jacobs v. Southern Railway Co., 241 U. S. 229, 36 Sup. Ct. 588, 60 L. Ed. 970, it had been customary for 11 or 12 years for ashes to be accumulated upon the tracks and Jacobs testified that he had knowledge “of the cinders being there,” but “had forgotten them being there at the time.” In the cáse at bar, under the most unfavorable inference, all that can be said is that Taber might have noticed the canopy in 1912, although, of course; on this nonsuit, plaintiff is entitled to the most favorable inference from the facts. It certainly cannot be held as matter of law' that Taber must have known on January 28, 1918, of the existence of a structure on which he might have been in September or October, 1912, nearly seven years before.
We have not before us the record upon which the Appellate Division
On this branch, the case is quite different from the Berkshire case, supra. There the employe “perfectly well knew of the existence of the crane where it stood * * * ” ; he “had been upon this route for some years, had passed over it many times, and must be presumed to have known of the crane.” Further the'court said:
“He entered the employment of the railroad when it had this‘appliance manifest in its place. The only element of danger that he may not have appreciated was the precise distance which the point of the crane would reach. But an experienced railroad man cannot be supposed to have been ignorant that such a projection threatened danger, and, knowing so much, he assumed the risk that obviously would attend taking the chances of leaning well out from the train. As we have said, the only possible inference on the uncon-tradieted evidence of the plaintiff’s witnesses was that he leaned out considerably more than 14 inches, as shown by the position of his body and the place of the cut on his head.”
And the court reversed the judgment, “confining ourselves to the case of postal cranes. * * * ”
In Taber’s Case there was no knowledge, and whether the danger was “plainly observable” (McDade Case), or was “so obvious that an ordinary prudent person under the circumstances would have appreciated it” (Cila Valley Case), was on this evidence a question of fact for the jury.
Judgment reversed.
Dissenting Opinion
(dissenting). This record shows no doubted or contradicted fact; yet it is said that the case must go to the jury. It seems to me the reasons why it should not are sufficiently set forth in Judge Woodward’s opinion in the Appellate Division. But it is fundamentally wrong to use a jury to evade decision, and by no one has the point been better put than by Justice Holmes, as follows:
“It is a featureless generality that the defendant was bound to use such care as a prudent man would use under the circumstances; and this gener*618 ality ought to be continually giving place to the specific one that he was hound to use this or that precaution under these or those circumstances. The standard which the defendant in tort was bound to come up to was a standard of specific acts or omissions with reference to the specific circumstances in which he found himself. If in the whole department of intentional wrong the courts arrived at no further utterance than the question of negligence, and left every case without rudder or compass to the jury, they would simply confess their inability to state a very large part of the law which they require the defendant to know, and would assert by implication that nothing could be learned by experience.” Holmes’ Common Law, p. 111.