Boehmer v. Pennsylvania R. Co.

• Decision Date: 10 May 1918
• Docket Number: 113.
• Citation: 252 F. 553
• Parties: BOEHMER v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Second Circuit

252 F. 553

BOEHMER v. PENNSYLVANIA R. CO.

No. 113.

United States Court of Appeals, Second Circuit.

May 10, 1918

A student brakeman, attempting to board a car to reach the brakes, and who at one corner of the car put his hands and feet where he supposed there was a grabiron and sill, but where the car had grabirons on only two corners, was guilty of contributory negligence, which, the case in that aspect being at common law, was a defense to his action for injury.

Writ of error to a judgment of the District Court for the Western District of New York (Thomas, J., presiding), dismissing a complaint after trial for failure of proof. The jurisdiction of the District Court depended upon diverse citizenship and on the Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 (Comp. St. 1916, Secs. 8605-8612)). The action was for injuries caused to the plaintiff by one of the defendant's cars while he was in the defendant's employ, through the supposed negligence of the defendant. The specific failures charged were the improper equipment of the car with grabirons and sills in accordance with the statute and in failing to instruct the plaintiff that the defendant would operate such cars along with those properly equipped. The facts disclosed upon the trial were that the plaintiff engaged with the defendant as a brakeman in September, 1915 had taken a student trip, so called, over the entire system and at the time of the accident, in the night of November 8 1915, was employed in switching freight cars at Brockton, N.Y. A refrigerator car, not the property of the defendant, stood upon the Nickel Plate tracks, and was to be transferred into a freight train being made up by one of the defendant's engines and crew, to which the plaintiff was detailed. It became necessary to take this car out of the train where it stood and drill it into the proposed train. At some stage of this maneuver the car was shunted along the track, and the plaintiff tried to board it, so as to get to the top and put on the brakes. He chose one corner of the car at which there was no grabiron and no sill, putting his hands where he supposed the grabiron would be and his foot where he supposed the sill would be. He fell under the car, and his foot was crushed and had to be amputated. It was dark at the time, and he carried a lantern. The car in question had a grabiron on each side of the car at one corner, where the pin lever for coupling and uncoupling extends along the end nearly to the corner. It had other grabirons on each end of the car at the side opposite to the pin lever, and had two ladders, one on each end of the car at the same side as the pin lever.

Two charges are made: First, that the car was not properly equipped under the Safety Appliance Act; and, second, that the defendant ought to have warned the plaintiff that some of the cars which it handled were not equipped according to the more modern requirements which provided that there should be two grabirons on each side of the car, with sills beneath them.

Sullivan, Bagley & Wechter, of Buffalo, N.Y. (Thomas A. Sullivan, of Buffalo, N.Y., of counsel), for plaintiff in error.

Rumsey & Adams, of Buffalo, N.Y. (H. J. Adams, of Buffalo, N.Y., of counsel), for defendant in error.

Before ROGERS and HOUGH, Circuit Judges, and LEARNED HAND, District judge.

LEARNED HAND, District Judge (after stating the facts as above).

The only statutory requirement applicable to this car at the time in question was that of section 4 of the act of March 2, 1893 (Comp. St. 1916, Sec. 8608), which provides as follows:

'Until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grabirons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.'

The first question is whether this provision was not fulfilled. At each end of the car there was a pin lever operating the automatic coupler. This pin lever came out nearly to the corner. At each side, near to these corners, was a grabiron and a sill, so situated that a man could use them while operating the pin lever. There were also grabirons on each end of the car opposite to where the pin levers were. It appears to us that the language of the section was complied with. It is clear that the number...