Central R. Co. of New Jersey v. Peluso

• Decision Date: 02 January 1923
• Docket Number: 104.
• Parties: CENTRAL R. CO. OF NEW JERSEY v. PELUSO.
• Court: U.S. Court of Appeals — Second Circuit

286 F. 661

CENTRAL R. CO. OF NEW JERSEY v. PELUSO.

No. 104.

United States Court of Appeals, Second Circuit.

January 2, 1923

George Holmes, of New York City (Charles E. Miller, of New York City, of counsel), for plaintiff in error.

Sydney A. Syme, of Mt. Vernon, N.Y., for defendant in error.

Writ of error to a judgment for $13,313.75 in favor of plaintiff below against defendant below, entered upon the verdict of a jury. The parties will be referred to as aligned below.

The action was brought under the federal Employers' Liability Act, 35 Stat. 65; Act of 1908, c. 149, Sec. 1 (Comp. St. Sec 8657), to recover damages in behalf of the widow and children of James Peluso, an employee of defendant.

On December 28, 1920, between 1 and 2 o'clock in the afternoon, Peluso was operating a crane on one of defendant's docks at Elizabethport, N.J.

The crane was mounted on a flat car which was standing upon the track nearest to the water. This crane consisted of a car containing the machinery and controls and a lattice work boom to which was attached a bucket, the lips of which could be opened and closed.

The crane was so constructed that it could be swung around in a complete circle.

Peluso had been engaged in unloading iron ore from a barge moored to the dock and placing it in cars which were standing on the second track away from the string piece. He had loaded all of the cars which were available and was waiting for a supply of empty cars. While thus waiting, Kraus, his superior, came down on the dock, and Peluso told Kraus that he had no coal in the bin. There were some cars containing coal standing on a track three tracks away from the track on which the crane was standing. Peluso swung the boom over toward these cars. The crane was standing idle with the bucket hanging over the car. The bucket was not moving. It was not raised nor lowered, but, according to defendant's witness Kraus 'it was just hanging over the car. ' Kraus, according to his own testimony, had examined the coal bin and saw that there was nearly a week's supply in it. He 'hollered' to Peluso and told him not to touch the coal in the cars as he had a week's supply in the bin. Thereupon, Kraus turned around with his back to the crane. It is not disputed that very soon thereafter, the crane overturned backwards into the water and the jury was justified in finding that it carried Peluso with it and he was drowned. Neither Kraus nor any one else saw the occurrence, although Kraus testified that when he turned around, the boom was flying in the air.

Immediately after the accident plaintiff's witness Sheehan, who was operating a tugboat lying in the slip, went over and found the crane in the river; the boom was pointed up to the stringpiece, and 'the other part lay on the ground like it was broken. * * * It was broken.'

Plaintiff's witness Matson, a detective sergeant on the Jersey City police force, went over immediately after the accident and found the crane in the water and the boom broken, with a portion lying on the ground over the rails. Matson testified that the boom 'broke about the center.' Asked whether, 'with a complete break between the two parts,' he answered, 'yes.'

Defendant's witness Withers, a then employee of defendant, went over immediately after the accident and testified that the boom was lying across the tracks, 1, 2, and 3.

Plaintiff's witness Strickland, an expert locomotive crane engineer, and 'all around engineer master mechanic,' testified that the only thing that could make this crane topple over backwards was the breaking of the boom. This testimony was not contradicted.

On the part of defendant there was testimony that immediately before the crane overturned, the boom with the bucket attached was seen to rise and fall the full length of the boom two or three times, and that after the accident a piece of wood about three feet in length and six inches wide was found lying alongside the bucket, and that the side of one of the coal cars looked as if a piece had been 'bitten out.' The jury by its verdict discarded this testimony.

It is not contested that Peluso was employed at the time in interstate commerce.

At the close of the case, defendant moved for a directed verdict on the ground that there was no evidence of negligence. The motion was denied and the case was sent to the jury with result supra.

Before HOUGH, MANTON, and MAYER, Circuit Judges.

MAYER Circuit Judge (after stating the facts as above).

The verdict of the jury must be regarded as having settled certain essential facts fully disclosed by the testimony, i.e.: (1) That the complete break in the center of the boom caused the crane to overturn and thus carry Peluso to his death by drowning; (2) that the side of the coal car was not caught by the lips of the bucket; and (3) that Peluso did not do anything which contributed directly or indirectly to the chain of events which ended with his death.

Thus the complete break in the center of the boom was the proximate cause of death. That this break was an unusual and, indeed, extraordinary occurrence seems plain without argument. But error is assigned on the ground that the trial judge wrongly held and charged that the case was one to which the doctrine of res ipsa loquitur was applicable.

At the outset, it is desirable to clear away some misapprehension of the meaning of res ipsa loquitur, and this may best be done by quoting from the admirable statement of McLaughlin, J., in Francey v. Rutland R.R. Co., 222 N.Y. 482, 119 N.E. 86:

'The action was tried and submitted to the jury on an erroneous theory as to the application of the rule of res ipsa loquitur. It is not a complicated rule, nor is there difficulty in applying it in a given case, when the reason for its adoption is understood. The phrase usually employed to express the rule, res ipsa loquitur-- the thing speaks for itself-- may at times tend to obscure rather than to make clear what the rule means. All that is meant is that the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of any other evidence bearing upon the subject, the inference that the accident was due to the negligence of the one having possession or control of the article or thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that unless an explanation be given the only fair and reasonable conclusion is that the accident was due to some omission of defendant's duty.'

Again, as said by Mr. Justice Holmes in Southern Railway v. Bennett, 233 U.S. 80, 85, 34 Sup.Ct. 566, 567 (58 L.Ed. 860):

'Of course the burden of proving negligence in a strict sense is on the plaintiff throughout, as was recognized and stated later in the charge. The phrase picked out for criticism did not controvert that proposition but merely expressed in an untechnical way that if the death was due to a defective instrumentality and no explanation was given, the plaintiff had sustained the burden. The instruction is criticized further as if the judge had said res ipsa loquitur-- which would have been right or wrong according to the res referred to.'

As also said by Mr. Justice Pitney in Sweeney v. Erving, 228 U.S. 233, 238, 33 Sup.Ct. 416, 417 (57 L.Ed. 815, Ann. Cas. 1914D, 905):

'The general rule in actions of negligence is that the mere proof of an 'accident' (using the word in the loose and popular sense) does not raise any presumption of negligence; but in the application of this rule, it is recognized that there is a class of cases where the circumstances of the occurrence that has caused the injury are of a character to give ground for a reasonable inference that if due care had been employed, by the party charged with care in the premises, the thing that happened amiss would not have happened. In such cases it is said, res ipsa loquitur-- the thing speaks for itself-- that is to say, if there is nothing to explain or rebut the inference that arises from the way in which the thing happened, it may fairly be found to have been occasioned by negligence.

'The doctrine has been so often invoked to sustain the refusal by trial courts to nonsuit the plaintiff or direct a verdict in favor of the defendant, that the application of the rule, where it does apply, in raising a question for the jury, and thus making it incumbent upon the defendant to adduce proof if he desires to do so, has sometimes been erroneously confused with the question of the burden of proof.'

See, also, Griffin v. Manice, 166 N.Y. 188, 192 et seq., 59 N.E. 925, 52 L.R.A. 922, 82 Am.St.Rep. 630.

Having thus clearly in mind the correct definition of res ipsa loquitur, it is necessary first to consider defendant's contention that in the national courts, the doctrine does not apply in a case between employee and employer under the federal Employers' Liability Act (Comp. St. Secs. 8657-8665), since, as contended, these courts, though applying the doctrine in passenger cases, have refused to apply it in master and servant cases. No such distinction has been recognized by the New York courts.

In the Francey Case, supra, the court quoted the Marceau Case (153 A.D. 931, 138 N.Y.Supp. 1128) with approval, but it appeared that the jury might have found that the accident was due to either of one of two causes, one of which was the negligence of plaintiff in letting cold water into the boiler. The trial judge had charged that the burden of proof was cast...