Ristucci v. Norfolk & W. Ry. Co.

• Citation: 60 F.2d 28
• Decision Date: 27 June 1932
• Docket Number: No. 5940.,5940.
• Parties: RISTUCCI v. NORFOLK & W. RY. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

60 F.2d 28 (1932)

RISTUCCI v. NORFOLK & W. RY. CO.

No. 5940.

Circuit Court of Appeals, Sixth Circuit.

June 27, 1932.

W. S. Cowan, of Columbus, Ohio (Cowan, Adams & Adams, of Columbus, Ohio, on the brief), for appellant.

James I. Boulger, of Columbus, Ohio (Henry Bannon, of Portsmouth, Ohio, on the brief), for appellee.

Before HICKENLOOPER, MACK, and SIMONS, Circuit Judges.

MACK, Circuit Judge.

Petition, alleging diversity of citizenship, charged that an accident which occasioned injuries to plaintiff while he was engaged in defendant's employ, arose from the concurrence of two factors, each due to defendant's negligence, the undue length of a swivel hook on a wrench supplied by defendant to plaintiff to enable him to close hopper car doors and a pronounced bend in an angle iron on the frame of a hopper car door, due to which the wrench slipped. From judgment on a directed verdict plaintiff prosecutes this appeal.

Plaintiff had been employed at closing hopper car doors for nine months before the accident. When closed, these doors lie in an inclined plane, thus constituting one side of a V-shaped section of the floor of the car, and swing open of their own weight when released from the catch that secures them. To raise them back into closing position, the wrench is used; it operates as a lever, resting on an angle iron projecting from the bottom of the car door. During the closing process, the wrench is kept in place by the swivel hook part which catches an attachment on the side of the car. After defendant had repaired several defects in the swivel hook of plaintiff's wrench, to which he had called attention, plaintiff told the foreman that "he couldn't use it as the hook was too long." It was repaired. That night he used it. The next night he measured it with his fellow worker's wrench, saw that it was "a little bit long," told the foreman that "it was still not right, still too long." He was directed to use it that night, the foreman stating that in the morning it would be repaired again. He followed instructions. Up to the time of the accident that night he had used it in closing the doors of some thirty-four cars; during that time, he says, "it was hard to fit and slow to work, didn't help but made him slow in the work"; "it was all right when he worked it, closed the doors without any trouble." But finally it did slip from one angle iron as he applied the pressure, although, as he testified, "if the flange had not been bent, I would have been able to close the door all right." When it slipped, he fell backward, suffering a fracture of the left leg (the rear leg as he stood braced), which doubled up under him.

While diversity of citizenship is alleged and no reference is made in the petition to the Ohio statutes, plaintiff contends that, under the evidence, his work at the time was intrastate commerce, and that, therefore, sections 6243 and 9017 of the General Code of Ohio, relating to defects in appliances, are applicable.

It is, however, entirely clear from the testimony that there was no defect in the wrench as used that night. Even if, as claimed, the hook was too long, that additional length, under plaintiff's own testimony, did not make it defective; it operated properly on the many doors of thirty-four cars although, as plaintiff stated, it slowed up his work. Most important, however, is his statement that but for the condition of the flange, it would have continued to work properly.

The negligence, therefore, if any, was in the condition of the angle iron. As to that, while other employees testified that they had seen the car, the...