O'CONNOR v. Pennsylvania Railroad Company

• Decision Date: 18 October 1962
• Docket Number: No. 6,Docket 26947.,6
• Parties: Eugene O'CONNOR, Plaintiff-Appellant, v. The PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

308 F.2d 911 (1962)

Eugene O'CONNOR, Plaintiff-Appellant, v. The PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellee.

No. 6, Docket 26947.

United States Court of Appeals Second Circuit.

Argued October 1, 1962.

Decided October 18, 1962.

Augustin J. San Filippo, New York City, for plaintiff-appellant; Maurice N. Nessen, New York City, of counsel.

Conboy, Hewitt, O'Brien & Boardman, New York City, for defendant-appellee; David J. Mountain, Jr. and James S. Rowen, New York City, of counsel.

Before LUMBARD, Chief Judge, and FRIENDLY and KAUFMAN, Circuit Judges.

KAUFMAN, Circuit Judge.

This action for negligence, commenced in the Supreme Court of the State of New York, was removed to the United States District Court for the Eastern District of New York by reason of the diversity of citizenship of the parties. A trial was held in which the jury found for the plaintiff. Upon proper motion by the defendant, Judge Christenson, sitting by designation, directed judgment for the defendant notwithstanding the verdict, pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S. C.A. Judge Christenson held "that as a matter of law the evidence before the jury was insufficient to show that the defendant was negligent or that its negligence, if any, proximately caused the plaintiff's fall and consequent injuries * * *." From this judgment, the plaintiff appeals.

The plaintiff's cause of action arises from his fall during a snowstorm on a terrace of the Pennsylvania Station building on the morning of February 16, 1958. The plaintiff claims to have slipped on a patch of ice on the terrace's marble floor, which condition he alleges was caused by the negligence of the defendant. The plaintiff submitted evidence of injury to his hips and legs resulting from the accident. The defendant, at trial, did not direct itself to the issue of damages, but solely to the issue of negligence.

We affirm the judgment of the court below, and find that the evidence adduced at trial so overwhelmingly points in favor of the defendant's contentions that it was proper for Judge Christenson to set aside the verdict of the jury and enter judgment for the defendant non obstante veredicto.

Pennsylvania Station is bounded on the north by Thirty-Third Street and on the south by Thirty-First Street; its main entrance is on Seventh Avenue and Thirty-Second Street, toward which faces the east side of the terminal building. On either side of the main entrance is a long marble terrace bounded on the outside by large pillars supporting a high roof. The terrace leading south from the main entrance, toward Thirty-First Street, is roughly six to seven feet wide; opposite the pillars lining the left-hand side of the terrace as one walks south, is a wall, solid except for a door leading to the railroad stock transfer office. It is near the first pillar of the terrace, close to the main Seventh Avenue entrance to the building, that the plaintiff, Eugene O'Connor, slipped and fell at approximately 7:20 a. m. on Sunday, February 16, 1958.

Mr. O'Connor had ridden the BMT subway from his home to Thirty-Fourth Street, walked underground to Seventh Avenue and ascended the IRT exit stairs at the north end of the main entrance to Pennsylvania Station at Seventh Avenue and Thirty-Second Street. As he ascended the steps leading from the subway and into the rotunda of the terminal building, Seventh Avenue and the public sidewalk were a few feet to his left. It was snowing heavily that morning, and had been the night before. The plaintiff was on his way to Thirty-First Street to attend church, and as he reached the top of the stairs leading into the rotunda of the station, he decided not to go out into the street at the closest access to it but instead to walk along the marble terrace leading to Thirty-First Street. There are five steps at the south side of the main entrance leading up to the terrace. The plaintiff ascended those steps and then fell somewhere in the vicinity of the first pillar, on what he described as a "rugged" patch of ice "roughly two by four feet". The usual conflict of testimony as to the condition of the premises was present here as in most negligence suits. There was testimony on behalf of the plaintiff that the center of the terrace floor was almost completely clear of snow while there was an accumulation of snow along the edges. The plaintiff testified that the ice on which he slipped was dirty gray and that all the irregular bits and patches of ice on the stone terrace floor were dirty. He further said that he did not remember whether the falling snow was being blown and whipped. The defendant submitted testimony to the effect that there was an accumulation of approximately two inches of wet snow on the terrace floor and that a gale was blowing the snow onto the terrace, which showed no traces of ice.

The law of New York¹ was construed by the judge in his instructions to the jury and by both parties in presenting their case to warrant a finding of negligence only if, among other things, the ice or snow upon which the plaintiff slipped had persisted from snow-falls earlier in the month of February. The plaintiff conceded that if the ice or snow upon which he slipped was a product of the snowfall that had started the evening before and continued up until the time in question, then the defendant could not be found liable.² While the law in this area is not clearly settled, there may well be precedent in the law of New York which would have imposed an obligation upon the defendant to clear off the terrace during the subsisting snowfall, or at least have made this question one for the jury.³ But since the plaintiff chose to base his claim to recovery solely on a failure to clear off the traces of previous snowfalls, and since, so far as the record indicates, the rule of law was accepted by the plaintiff at trial and is apparently unquestioned on appeal, our only concern is with the question whether a reasonable jury could find that the cause of the plaintiff's injury was his slipping upon snow or ice preexisting the snowfall of February 15 and 16. We believe that they could not so find.⁴

The official United States Weather Bureau report reveals that a "trace" of snow or sleet fell at Battery Place in New York City on February 7, 9 and 12, 1958. A "trace" is defined as an amount too small to measure. The same report reveals that a record was kept of the amount of snow, sleet, or ice on the ground at 6:50 a. m. of the days immediately prior to the snowfall of February 15 and 16. The record shows that there was no trace of such precipitation on the ground on any day between February 7 and the date of the snowfall in question. At the Central Park Meteorological Observatory, 2.1 inches of snow fell on February 7, and but a trace of precipitation remained on the ground there from February 9 until February 15.

The United States Weather Bureau records show that snow commenced falling at roughly 3 p. m. on the day before the plaintiff's accident and continued without pause until some time after the accident occurred. The accumulation of snow at Battery Place totalled some nine inches, with snow drifts up to two feet. From midnight of February 16, strong winds, roughly twenty miles an hour, accompanied the snowfall. From 8 p. m. that evening until past 2 a. m. on the morning of the 16th, the predominant wind direction was from the northeast, thus casting the falling snow onto the Seventh Avenue terrace for many hours. The Weather Bureau records also reveal that there was a wind velocity of 29 miles per hour at 6 a. m.; at 7 a. m. it was 37 miles per hour with gusts up to 52 miles per hour; and at 8 a. m., shortly after plaintiff's accident, the average wind velocity was 41 miles per hour with gusts up to 54 miles per hour. The weather records referred to conditions throughout the morning as "blowing snow."

All of these factors, supported by unquestioned documentary evidence, tend strongly to contradict the evidence offered on behalf of the plaintiff. Even if it could reasonably be assumed that some traces of...