Colasurdo v. Central R.R. of New Jersey

• Decision Date: 01 July 1910
• Parties: COLASURDO v. CENTRAL R.R. OF NEW JERSEY.
• Court: U.S. District Court — Southern District of New York

180 F. 832

COLASURDO v. CENTRAL R.R. OF NEW JERSEY.

United States Circuit Court, S.D. New York.

July 1, 1910

[Copyrighted Material Omitted]

Thomas J. O'Neil, for plaintiff.

De Forest Bros., for defendant.

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

The question is squarely raised in this case of the jurisdiction of this court. In so far as it depends upon diverse citizenship, the case must be remanded under Act March 3 1875, c. 137, 18 Stat. 470 (U.S. Comp. St. 1901, p. 507). That act provides, in section 5, that, if at any time it appears that the suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of the said Circuit Court, that court shall proceed no further, but dismiss the suit or remand it to the court from which it was removed, as justice requires. If however, the dispute or controversy is one arising under a law of the United States, then this court has jurisdiction, and it makes no difference that the defendant could not have been originally sued in such a controversy outside of its domicile. Such domiciliary objections do not go to the subject-matter of the jurisdiction, and the only ground for a remand or dismissal under the act of 1875 is when 'the dispute or controversy' is not 'properly within the jurisdiction' of this court. Such a dispute or controversy is within its jurisdiction if the correct construction of the law, which is laid in the complaint as the basis of the right of action, is necessarily involved in the decision, and it is quite clear in this case that it is necessary to determine the meaning of the phrase 'person employed by such carrier in such commerce. ' Therefore this court has jurisdiction, even though the complaint should be dismissed because the plaintiff was not a person so employed. In short, a decision of the meaning of that act is necessary, and such a necessity gives me jurisdiction, regardless of the result of the case. Huntington v. Laidley, 176 U.S. 668, 20 Sup.Ct. 526, 44 L.Ed. 630.

Coming then to the merits, I will take up the points raised by the defendant seriatim. First, upon the motion to direct a verdict, I think the refusal was proper. From the evidence the jury could have found that the plaintiff, who was under the orders of Nighland, had been standing facing east so that the train came upon him from the rear, while Nighland himself was at work facing either south or west, and the other track walker stood apparently between the two. If this was the relative position of the three men, the jury could have found that the plaintiff was relying upon the other track walker or Nighland to look west and to observe the trains. If both failed to warn plaintiff of the train coming from that direction, the accident was due to their negligence in a duty reasonably imposed upon them, and, though they were fellow servants, yet under this statute their negligence was that of the master. The fellow-servant rule has been so much ingrained in both bench and bar that this point was not made on the trial; but it was directly in the evidence and justified a refusal to dismiss for lack of the defendant's negligence.

Besides, there was also evidence in the case that the rear of the train was not lighted, that no warning was given of the train's approach, and that the man at the rear, although he saw the lights, waited too long before trying to check the train. Since the accident happened at night, and the train was running swiftly and without any ready means of control, I think the case is clearly differentiated from Aerkfetz v. Humphreys, 145 U.S. 418, 12 Sup.Ct. 835, 36 L.Ed. 758, and I certainly do not think that as matter of law there was no negligence in operating in a freight yard four cars under their own impetus, after dark, without warning and without light. None of the cases cited by the defendant have a set of facts similar to this. Upon these two grounds therefore, and without considering the question of the necessity of stationing a man to watch the three, I am satisfied that there was evidence of the defendant's negligence.

Contributory negligence being no defense, there remains only the assumption of the risk, which clearly enough is differentiated in the statute, though the usual distinctions between the two seem to me, I must say, very unscientific and vague. Perhaps the best difference is that of the degree of proximity of the supposed acceptance of the danger to its occurrence. Schlemmer v. Buffalo, etc., R.R. Co., 205 U.S. 1, 27 Sup.Ct. 407, 51 L.Ed. 681. The plaintiff here assumed the risk, if at all, either, first, by accepting employment; or, second, by obeying Nighland's order to hold the light. As to the first ground, the jury could have found that he had never been called on to mend a switch before, in which case they could not have found that he assumed the risk when he accepted the employment at the beginning of the last week or the last day when he went to work. As to the second ground, to obey Nighland's order may have been contributorily negligent; but that is, I think, all it was. If there is any distinction between that and assuming the risk, as the statute requires, to put yourself in such a position is negligence rather than assumption. However, it is not necessary to decide this, because the jury, as I have said before, could well have supposed that the plaintiff relied on Nighland or the other track walker to watch for trains coming from his rear. Clearly he did not as matter of law assume the risk of being run down by an unlighted train which gave no warning to any one, which the jury could have found to be the case. The assumption can begin only after the plaintiff is aware of the master's delinquency.

The only important exception which remains is to that part of the charge which...