Carfelo v. Delaware, L. & WR Co.

Decision Date07 December 1931
Docket NumberNo. 69.,69.
Citation54 F.2d 475
PartiesCARFELO v. DELAWARE, L. & W. R. CO.
CourtU.S. Court of Appeals — Second Circuit

COPYRIGHT MATERIAL OMITTED

Evans, Hunt & Rees and William G. Walsh, all of New York City, for plaintiff-respondent.

Douglas Swift, of New York City, for defendant-appellant.

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

CHASE, Circuit Judge (after stating the facts as above).

This appeal brings up for review the ruling of the court in denying the defendant's motion for a directed verdict and some questions relating to the charge.

It was, of course, necessary to take the evidence in the light most favorable to the plaintiff in passing upon the motion for a directed verdict. This required that it be taken for granted that there was not only no lookout on the defendant's engine and no warning or signal given from it to the plaintiff, but that he was crossing the track on a path over it which the defendant knew was there, knew was used by its section men in connection with their work, and that the use the plaintiff was making of it when injured was so closely connected with interstate commerce as to be a part of it. We do not think, however, that the evidence either required or permitted the court to assume that the engine was being operated at excessive speed. The evidence was virtually all to the effect that it was not. The testimony of one witness who based his opinion on what may fairly be called a glimpse of it as it was moving, not past, but away from him, can hardly be called more than a scintilla, and the plaintiff did not even ask to have that question submitted to the jury. See Hammond v. Crawford (C. C. A.) 66 F. 425.

It is obvious that the rights of the plaintiff and the liability of the defendant must be determined from the standpoint of an employee engaged in performing the work of an employer in interstate commerce, for this action is based wholly on the Federal Employers' Liability Act. The duty the defendant may have owed to others at the time and place the plaintiff was injured cannot be brought to bear upon the decision of this case. He must win or lose solely on an application of the law which applies to employees of the class to which he belonged. Chesapeake & Ohio Ry. Co. v. Mihas, 280 U. S. 102, 107, 50 S. Ct. 42, 74 L. Ed. 207.

So the problem simmers down to whether or not a section man, working on the track of his employer at the point where a known path, used by all who will, crosses that track, is entitled to be looked out for and warned of the presence of such engines or trains moving toward him as the employer runs along the track. As no custom to give any warning to section men at this place was shown, the rights and duties of these parties are controlled by the law as laid down in the case of Chesapeake & Ohio Ry. Co. v. Nixon, 271 U....

To continue reading

Request your trial
8 cases
  • Kurn v. Stanfield, 11615.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 24, 1940
    ...42, 74 L.Ed. 207; Penn. R. Co. v. Bourke, 6 Cir., 61 F.2d 719; Southern Ry. Co. v. Verelle, 4 Cir., 57 F.2d 1008; Carfelo v. Del. L., & W. R. Co., 2 Cir., 54 F.2d 475; Biernacki v. Penn. R. Co., 2 Cir., 45 F.2d 677; Norfolk & W. R. Co. v. Kratzer, 6 Cir., 37 F.2d 522; Miller v. Canadian Nor......
  • Grange v. Chicago & E. I. Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • March 14, 1934
    ...of the failure of the fireman to observe plaintiff and to notify the engineer of his danger. Biernacki v. Railroad, 45 F.2d 677; Carfelo v. Railroad, 54 F.2d 475. (5) the absence of a custom to warn by whistle or bell before starting a train movement, the failure to whistle or ring, i.e., t......
  • Shidloski v. New York, C. & St. L. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • October 19, 1933
    ...T. & S. F. Ry. v. Wyer, 8 F.2d 30; Pennsylvania Railroad Co. v. Lutton, 29 F.2d 689; Flannery v. Railroad Co., 29 F.2d 18; Carfelo v. Railroad Co., 54 F.2d 475. (3) The defendant owed no special effort to avoid injury the deceased unless his peril was known. St. Louis & S. F. Ry. Co. v. Sch......
  • New Orleans & N.E. R. Co. v. Benson
    • United States
    • United States State Supreme Court of Mississippi
    • October 10, 1938
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT