Schilling v. Delaware & HR Corporation

• Decision Date: 01 August 1940
• Docket Number: No. 377.,377.
• Citation: 114 F.2d 69
• Parties: SCHILLING v. DELAWARE & H. R. CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

114 F.2d 69 (1940)

SCHILLING v. DELAWARE & H. R. CORPORATION.

No. 377.

Circuit Court of Appeals, Second Circuit.

August 1, 1940.

Louis N. Jaffe, of Brooklyn, N. Y., for plaintiff-appellee.

Thomas L. Ennis, of New York City, (Joseph Rosch, Kenneth E. Walser, and James H. Halpin, all of New York City, of counsel), for defendant-appellant.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

The plaintiff recovered a judgment in the District Court for the Southern District of New York for the damages, assessed by a jury, which he sustained when his left leg was cut off between the ankle and the knee in the defendant's freight yard at Binghamton, N. Y., on March 29, 1938, and the defendant appealed.

The evidence was sufficient to enable the jury to find that when the accident happened the plaintiff was in the employ of the defendant engaged in interstate work as a brakeman classifying freight cars. The yard where he was working had a lead track running north and south from which ten parallel tracks ran off in a southeasterly direction on a down grade sufficient to let cars which had been released move down them by the force of gravity. In this way cars having the same destination were placed upon the same track. As one or more cars were released to move into any of these side tracks, it was the duty of the plaintiff to mount one of them at the hand brake and apply that brake at the right time to stop them when they had reached the desired position.

The accident happened about nine twenty-five on a rainy evening under the following circumstances. The plaintiff had returned to the lead track from a trip down a side track and was walking north on the west side of the lead track toward six cars standing on it which were to be classified. As he came close to these cars he saw the conductor who was in charge of the crew in which he was working standing near the north end of the nearest car with a switch tender named Spencer. This car was some thirty-five feet beyond the switch of side track No. 2 and the plaintiff then knew the car was to be let down side track No. 3 and that he was to ride it. When he was within seven or eight feet of the south end of the car, he could tell that the brake wheel was at the northeasterly corner of it and, as it was safer to mount the car at that corner, he started across the track to go up the east side of the car for that purpose.

The ties in that track had been made of two pieces of discarded rails welded together at the bottom flanges. This left a space between the two pieces of rail at the top some three or four inches wide and as deep as the height of the rails, but such spaces were filled with cinders and when the ties were in proper condition were kept so filled. At times, however, the filling would be washed out and this sometimes happened when an engine standing on the track blew off steam. The defendant inspected the track daily and the inspection crew's duty included filling such holes in the ties. There had been such an inspection of the track on the day of the accident.

Eight or ten seconds after the plaintiff started across the track as previously stated, the conductor having signalled to the engineer to take up the slack and pulled the coupling pin to cut off the car, the car began to move slowly and, as it happened, directly toward the plaintiff who had stepped into an unfilled space in a tie and caught his left foot so firmly that he could not release it. The car wheel struck his leg and knocked his foot loose but he was unable to pull it away before the wheel ran over his leg and cut it off.

The plaintiff contended that the defendant was negligent in (1) using ties of the kind described; (2) allowing an unfilled space to exist between the two pieces of the tie in which he caught his foot; (3) failing to warn him before moving the car; (4) failing to allow enough time to cross the track; and (5) failing to comply with a custom in the yard which prevented the release of a car until the brakeman was known to be in a position to mount it at the brake corner.

At the defendant's request, the court ruled that use of the kind of ties was not per se negligent, but we cannot surely tell from the record that the jury ever was so informed. At any rate, none of the other so-called negligent acts or omissions was eliminated from the case though the defendant moved for a directed verdict on the ground that no negligence whatever had been proved.

It was, of...