Boston & Maine RR v. Jesionowski
| Decision Date | 20 May 1946 |
| Docket Number | No. 4108.,4108. |
| Parties | BOSTON & MAINE R. R. v. JESIONOWSKI. |
| Court | U.S. Court of Appeals — First Circuit |
Before MAHONEY and WOODBURY, Circuit Judges, and ALBERT LEE STEPHENS, Circuit Judge (by special assignment), sitting.
Francis P. Garland and Hurlburt, Jones, Hall & Bickford, all of Boston, Mass., for appellant.
Thomas C. O'Brien, of Boston, Mass., for appellee.
Writ of Certiorari Granted May 20, 1946. See 66 S.Ct. 1121.
Stanley Jesionowski, a brakeman on the Boston & Maine Railroad, was killed in a train wreck, while on duty. His widow, administratrix of decedent's estate, recovered a substantial judgment upon the second count of a complaint laid in two counts against the railroad corporation for compensation to herself and the minor children in an action pursuant to the provisions of Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The railroad appeals.
Early in the morning of July 1, 1944, a freight train under appellant's operation was moving westerly and came to a stop a short distance beyond a switch point. The fourth car back from the engine was to be dropped onto the north siding. According to the testimony of the engineer, the only eye witness to the wreck, the following occurred: Jesionowski, the deceased, who was riding in the engine cab, dropped to the ground and "he went back to cut off four cars." In due time he gave the engineer the go-ahead signal by lantern, and the engineer moved the train forward until he received the stop signal from Jesionowski. The latter went to the switch stand and started back toward the car, giving the signal to back. The engineer then saw Jesionowski on the side of one of the cars, and he repeated the back-up signal though the train had already started backward. He proceeded to back at a speed of five miles per hour to enter the siding. He had backed about three car lengths when he saw splinters and planks flying about and stopped the train. Investigation revealed that although the switch mechanism had been thrown so as to bring the switch rail points against the main track rails in the proper position to direct an east bound movement of cars onto the siding, the front truck wheels of the leading car in the backward movement had not taken the switch, but continued past the switch rail points without leaving the main rails. The other truck wheels of this car and the front truck wheels of the next car had jumped the track. Part of the train had backed over the frog (75½ feet westerly from the switch points), cutting and notching its bolts. Marks, evidently from wheel flanges, were on the rails and ties, both forward and backward from the frog. Jesionowski's dead body was lying on the track.
There is evidence to the effect that the road bed rails, switch and switch mechanism, and the frog were found in good condition, and the same is true as to the several parts of the cars involved, except only the damaged parts due to the wreck. No counter evidence is in the case. Measurements as to the length of the cars, coupling mechanism and engine, together with the footage from the switch to the point the engine began backing, was introduced.
There are two counts to the complaint. In the first one it is alleged that Jesionowski's death was caused by reason of a defect or insufficiency, due to the negligence of the railroad corporation in its car, track or roadbed. The car upon which Jesionowski was riding was derailed, causing him to be thrown under the car wheels and killed. It is alleged in the second count that Jesionowski's death resulted from the derailment of the car upon which he was riding and that the derailment was the result of the railroad corporation's negligence. No specification of any particular negligence was alleged. The second count was added as an amendment after filing of the original complaint.
By the answer the plaintiff was put upon her proof as to the defendant's alleged negligence. Contributory negligence upon the part of Jesionowski was alleged.
The court instructed the jury to return a verdict in favor of the defendant railroad on the first count, gave full instructions as to the law and left the decision upon the second count to the jury. The verdict returned was for the defendant upon the first count and for the plaintiff upon the second count. The defendant here, in the character of appellant, contends that the verdict in the first count is res judicata as to the second count and that therefore the judgment upon it must be set aside. The contention made its first appearance in appellant's opening brief on appeal. Rule 75(d) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, is: "If the appellant does...
To continue reading
Request your trial
-
Indemnity Insurance Co. v. Pioneer Valley Savings Bank
...Watson v. Button (9 Cir.) 235 F. 2d 235; Western National Insurance Company v. Le Clare (9 Cir.) 163 F.2d 337; Boston and Maine Railroad v. Jesionowski (1 Cir.) 154 F.2d 703; and rather more liberally, Foremost Dairies, Inc. v. Ivey, (5 Cir.) 204 F.2d 186; El Chico, Inc. v. El Chico Cafe (5......
-
Gow v. Multnomah Hotel
...thrown the switch in a manner causing the derailment. Verdict went for the plaintiff, but the Circuit Court of Appeals reversed, 1 Cir., 154 F.2d 703, being of the opinion that res ipsa loquitur could not apply. Concerning the reasoning of the Circuit Court of Appeals the Supreme Court "Exc......
-
Chapin v. Rogers
...on the part of plaintiff. 9 Wigmore, Evidence § 2509 (3d Ed. 1940); Prosser, Torts § 39, at 218 (3d Ed. 1964); Boston & Maine R.R. v. Jesionowski, 154 F.2d 703 (1st Cir. 1946); Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258 (1944); Palmer v. Clarksdale Hospital, 206 Miss. ......
-
Wilkerson v. McCarthy
...350, 63 S.Ct. 1062, 87 L.Ed. 1444.' In Jesionowski v. Boston & M. R. Co., 329 U.S. 452, 67 S.Ct. 401, 404, 91 L.Ed. -- , reversing 1 Cir., 154 F.2d 703, the court said: '* * * Thus, the question here really not whether the application of the rule relied on fits squarely into some judicial d......