New York, NH & HR Co. v. Zermani

• Citation: 200 F.2d 240
• Decision Date: 19 December 1952
• Docket Number: No. 4668.,4668.
• Parties: NEW YORK, N. H. & H. R. CO. v. ZERMANI.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

200 F.2d 240 (1952)

NEW YORK, N. H. & H. R. CO. v. ZERMANI.

No. 4668.

United States Court of Appeals First Circuit.

December 8, 1952.

Rehearing Denied December 19, 1952.

Edmund J. Moore, Boston, Mass. (William Q. Keenan and Noel Deering, Boston, Mass., with him on the brief), for appellant.

John V. Higgins, New York City, (Thomas J. O'Neill, New York City, Joseph P. Coughlin, Cambridge, Mass., and O'Neill, Higgins & Latto, New York City, with him on the brief), for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

This is an appeal from judgments entered in the United States District Court for the District of Massachusetts on February 8, 1952, based upon jury verdicts in an action brought under the Federal Employers' Liability Act. 35 Stat. 65, as amended, 45 U.S. C.A. § 51 et seq.

The plaintiff sought recovery under 45 U.S.C.A. § 51, for damages suffered as the result of the death of her husband, John T. Zermani, while employed as a brakeman by the defendant and under 45 U.S.C.A. § 59 for his conscious suffering. Zermani's injuries and death were alleged to have resulted from an accident which took place during a classification and switching operation in the defendant's railroad yard.

On February 6, 1952, the defendant's motion for a directed verdict was denied. On February 7, 1952, the jury returned a verdict for the plaintiff in the sum of $25,000 on the conscious suffering count and in the sum of $116,500 on the count for death. On February 28, 1952, the defendant's motion for a new trial was denied.

The facts are substantially as follows: On the morning of August 25, 1951, at about 4:45 a. m., a train and switching crew of the defendant, on which John T. Zermani, the plaintiff's husband, held the position of brakeman, was engaged in a train classification operation in the defendant's yard at Taunton, Massachusetts. The purpose of this operation was to break up a string of cars in order to leave some on track 1 and others on track 6, which was east of track 1. To do this it was necessary to move a part of this string of cars northward on track 1 past a switch leading to track 6, and thereafter to move some southward on track 6 and some others southward on track 1. Before the movement began, this string of cars and the engine coupled to it stood two car lengths southward from Danforth Street crossing, the engine being the most northwardly situated unit. This crossing was in turn 15 feet south of a switch leading from track 1 to a number of yard tracks, one of which was track 6. South of this crossing was the final switch which gave entry to track 6.

This classification operation was supervised by Francis A. McAloon, the yard conductor. After the automatic braking mechanisms had been released on the northernmost twenty-two cars on the string, they were hauled northward on track 1 until they had cleared the switch north of the Danforth Street crossing, which led from track 1 to the other yard tracks, including track 6.

Either prior to moving these twenty-two cars northward or immediately on having moved them, McAloon and Zermani released air pressure from the automatic brake reservoir tanks on the southernmost ten cars, an operation known as "bleeding", the effect of which was to release the automatic brakes on these cars and to render them mobile. The purpose of thus rendering the cars mobile was to enable Edwards, the engineer, by the impact of the locomotive, to cause the cars to roll southward after they had been uncoupled.

There is testimony that McAloon ordered William Howard, a brakeman on the defendant's train crew, to handle the cars rolling southward to track 1 and Zermani to handle the cars rolling southward to track 6. After the ten southernmost cars had been uncoupled, they were propelled southward by a locomotive and then allowed to continue their movement over the Danforth Street crossing on their own momentum. Zermani rode the first car to track 6 and brought it to a halt. Next Howard rode cars 2, 3, 4, and 5 to track 1 and brought them to a halt. These cars were stopped by use of the hand brake and they in turn were expected to stop all subsequent cars rolled southward on tracks 1 and 6.

When these five cars had stopped, car 6 was propelled southward uncoupled from the engine. It came to a stop at the Danforth Street crossing, short of its intended destination on track 6, but sufficiently southward of the northernmost switch leading from track 1 to permit a clear passage from north to south over the crossing on track 1. Meanwhile Zermani had walked northward along track 6 and reached the crossing after car 6 had stalled, presumably due to its being incompletely bled. Zermani began to bleed car 6, as cars 7, 8 and 9 were moving southward over the Danforth Street crossing on track 1, and McAloon shouted instructions to Zermani, he claims, in regard to the stalled car. As soon as car 9 cleared the crossing, Zermani ran around it to its west side and then turned to run in a southerly direction. Berube, the switchtender at the Danforth Street crossing at the time of the accident, testified that the position of Zermani's lantern indicated that Zermani was at the ladder leading to the handbrake at the southerly end of the moving car 9 and that he then saw the light move up in the air. Zermani hollered. He was found conscious, severely injured, lying on the ground beside car 9. He died on August 31, 1951, as a result of the injuries he sustained.

Substantially the appellant relies upon the following points (1) that the court below erred in denying defendant's motion for a directed verdict; (2) that the charge to the jury was erroneous and prejudicial; (3) that the court erred in denying defendant's motion for a new trial on the ground that the amount of the verdict is excessive, and (4) that there was an erroneous and prejudicial evidentiary ruling on the issue of damages.

Considering all the evidence according to the stringent requirements delineating the functions of judge and jury in this type of case, we think there is a reasonable basis for the conclusion that negligence of the defendant caused harm for which defendant is liable and that there was sufficient evidence to submit to the jury the question of negligence posed by the complaint and developed by the evidence.

Appellant contends that each item of alleged negligence, taken separately, does not provide a reasonable basis for an inference of negligence which proximately caused Zermani's death. Although this may be true of the worn brakehead on the fatal car and of the failure to bleed completely car 6, yet the evidence taken as a whole does not support appellant's argument. The order of conductor McAloon, transmitted by yelling, as he pointed to Zermani during the course of a speedy switching operation at night in a noisy yard, is a sufficient basis for the inference which the jury made.

At the time McAloon pointed and shouted, the switching movement was in progress. It was night and dark. A string of three cars was rolling unattended at 12 to 15 miles per hour over the crossing where Zermani was standing. The engine was backing and pulling. The cars and couplings between the cars were moving, all necessarily creating a considerable amount of noise. Under these circumstances, McAloon pointed south toward the stalled car, the crossing, the three moving cars on track 1, which at the moment were just going over the crossing, and Zermani. Zermani, the stalled car on track 6 and the moving cars on track 1 were all close together. It would be difficult, if not impossible, to decide exactly whether McAloon was pointing at the car on track 6 or at the three moving cars. Since the part of the movement in progress was the three moving cars, it would be reasonable for Zermani to conclude that he was being given an order about them. This is especially so since the three cars were moving unattended at a speed of about 12 to 15 miles per hour which was not done as a rule, according to testimony.

From all this evidence the jury was justified in concluding that when McAloon pointed and yelled, Zermani understood he was ordering him to catch the cars on tracks 1 to ride them and apply the brake.

In Wilkerson v. McCarthy, 1948, 336 U.S. 53, 61, 69 S.Ct. 413, 417, 93 L.Ed. 497, the Supreme Court said:

"* * * But the issue of negligence is one for juries to determine according to their finding of whether an employer\'s conduct measures up to what a reasonable and prudent person would have done under the same circumstances. And a jury should hold a master `liable for injuries attributable to conditions under his control when they are not such as a reasonable man ought to maintain in the circumstances\', bearing in mind that `the standard of care must be commensurate to the dangers of the business.\' Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 451, 87 L.Ed. 610."

Furthermore, in Blair v. B. & O. R. Co., 1944, 323 U.S. 600, 602, 604, 65 S.Ct. 545, 546, 89 L.Ed. 490, the court said:

"To deprive railroad `workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them.\' Bailey v. Central Vermont R. Co., 319 U.S. 350, 354, 63 S. Ct. 1062, 1604, 87 L.Ed. 1444. * * *

* * * * * *

"* * * The duty of the employer `becomes "more imperative" as the risk increases.\' Bailey v. Central Vermont R. Co., 319 U.S. 350, 352, 353, 63 S.Ct. 1062, 1063, 1064, 87 L.Ed. 1444. See also Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 451, 87 L.Ed. 610. The negligence of the employer may be determined by viewing its conduct as a whole. Union Pacific R. Co. v. Hadley, 246 U.S. 330, 332, 333, 38 S.Ct. 318, 319, 62 L.Ed. 751. And especially is this true in a case such as this, where the several elements from which negligence might be inferred are so closely interwoven as to form

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